De Kapotte Kachels should appeal

"Dikke Pens" is a parody, the court held - and still had to come offline. That grates. The balancing of interests, turning on commerce, reach and association, is framed so widely that any carnival parody could fall foul of it.

One of the fine things about the law, I have always thought, is that it is never black and white. Even within a firm, views can differ. Unlike my colleague Merel Teunissen, I consider the judgment in Universal v De Kapotte Kachels a poor one.

The judgment (ECLI:NL:RBMNE:2026:4647) does not set out, contrary to normal practice, what De Kapotte Kachels actually claimed. As it stands, the judgment appears to suggest that the band’s case was mainly (or also) that being removed from Spotify damaged their revenue model, or at least that they have a commercial interest and intend to generate income. But that was not the case: the principal claim was a declaration that “Dikke Pens” was a parody, or in the alternative a pastiche.

And so to the judgment. The court finds that there is a parody. It then carries out a balancing of interests, since the Court of Justice of the European Union has held that the application of an exception to copyright must “strike a fair balance between, on the one hand, the interests and rights of persons referred to in Articles 2 and 3 of that directive, and, on the other, the freedom of expression of the user of a protected work who is relying on the exception for parody”. All the circumstances of the case may play a part in that assessment. (See Deckmyn v Vandersteen, CJEU 3 September 2014, C-201/13.)

Up to that point the court is right. But in the balancing itself it goes wrong, in my view. Let me work through it.

The extent of the use of the music

To make a parody, you have to use the work. Music and lyrics are usually regarded as a single coherent work (not so much as a matter of law, but certainly by the general public; see for instance article 40a of the Dutch Copyright Act). Parodying music by itself also strikes me as difficult: with a song, you parody the lyrics as well. Think of André van Duin’s parodies of “We zullen doorgaan” and “Waardeloos” (a parody of “Ademnood”).

The complaint that, with De Kapotte Kachels, “the musical core of the original work remains highly recognisable” is to my mind at odds with the court’s own preceding finding that this is a parody. The court holds: “A successful reliance on the parody exception therefore requires that the parody evokes the original work while differing from it to a sufficient degree, and constitutes an expression of humour or mockery. It is not in dispute between the parties that those requirements are met.”

We then move on (rightly) to the balancing of interests, as the court itself says, but not back to the question of how much of the original work was or was not used and whether that falls within the bounds of a parody. That question has been answered by the finding that this is a parody.

Commercial exploitation

That the track is or can be commercially exploited is not, in itself, a circumstance that should defeat reliance on the exception. The question is not whether the parodist profits commercially; the test, as I see it, is that the exception must “not conflict with a normal exploitation” (article 5(5) of the Copyright Directive 2001/29/EC) of the work: does the author of the parodied work suffer commercial harm?

The existence of this parody does not conflict with the exploitation of “Take A Chance On Me”. During carnival it is mainly (indeed only) carnival tracks that get played. In Oeteldonk you will hear “Er staat een paard op de gang”, “Bij ons staat op de keukendeur”, “Leo” and “‘K Heb Hele Grote Bloemkoole”; Taylor Swift, Ariana Grande, Adele and ABBA you will barely hear at all in those days.

What is more, the authors of “Take A Chance On Me” suffer no loss. On the contrary: they benefit from the parody. They receive their Buma/Stemra royalties for performances and broadcasts of “Dikke Pens”. And because “Take A Chance On Me” is played far less, or not at all, during carnival (in Oeteldonk at any rate) while “Dikke Pens” is, the original authors profit financially from this parody.

Not temporary in nature, and wide reach

The track is said not to be temporary in nature and to have a worldwide reach. I disagree with both arguments.

The track is a carnival song and for that reason alone temporary: nobody plays “ik heb worstjes op mijn borstjes” on the radio at Christmas (just as you will not hear “I’m dreaming of a white Christmas” in July). That it may return each year at carnival is another matter. Either way the track only plays a part just before and during carnival; after Ash Wednesday you will not hear it again for a year.

The wide reach strikes me as nonsense too. Whereas ABBA is played across the world, this is a Dutch-language track: its reach is at most the Netherlands and Flanders. And the reach is smaller still, because carnival is not celebrated everywhere in the Netherlands; any serious reach is confined to Flanders, North Brabant, Limburg and some eastern parts of Gelderland.

Spotify will no doubt also carry tracks in Swahili, but nobody says those have a reach in the Netherlands (leaving aside that there are people in the Netherlands whose mother tongue is Swahili and who are no doubt glad to be able to listen to such a track on Spotify). And perhaps the Catholic Dutch community in Australia holds a carnival evening as well, but that does nothing to change the limited reach.

What is then incomprehensible is the reasoning, advanced by Universal’s lawyers, that live performances and television appearances may go ahead and that recordings of them may be placed on platforms such as YouTube. Allowed on YouTube: what about worldwide reach and temporariness there? And what about any advertising revenue?

Association

It may well be that ABBA does not want to be associated with being overweight, but is that wish an interest the law should respect, or a circumstance that counts in ABBA’s favour? I think not.

Even though the track, using ABBA’s music, is about being overweight, that does not mean ABBA is associated with being overweight. And it is questionable whether the association with being overweight is a negative one at all. In “Dikke Pens” it is rather a cheerful, positive acceptance of it (mockingly meant, of course): “Ik ben zo blij / Met die pens van mij” and “Om dik te worden, is het nooit te laat / Met die pens van mij, hoor ik er weer bij”.

If simply not wanting to be associated with a given position were enough, there would be no end to it. The association that can and may play a part in this balancing exercise should, in my view, be limited to association with matters generally regarded as negative or unacceptable: discrimination, the use of violence, child abuse imagery and other reprehensible things.

Freedom of expression and artistic expression

The court considers unpersuasive the argument that this is a carnivalesque expression and therefore a cultural phenomenon. Well, it persuades me a great deal. Parodies of this kind are made precisely, and exclusively, in the context of carnival. “Carnival is above all the feast of folly, mockery and exuberance”, as Wikipedia puts it.

Freedom of expression is not entirely restricted, the court says, because De Kapotte Kachels can still perform the track live and on television, and can place recordings of that on platforms.

Universal will not allow it online, on the radio or through physical exploitation (what is that? CDs?). Freedom of expression is thus limited to “non-commercial” exploitation. Can freedom of expression be restricted in that way? Apparently this means that live performances, television appearances and recordings of them on platforms are not commercial exploitation?

Chilling effect

The court states that no chilling effect flows from this ruling, because the judgment turns solely on the specific circumstances of this case. Here too I part company with the court. The “not wanting to be associated” criterion is framed so broadly that, as I said, any instance of not wanting to be associated could fall within it. “Temporary in nature” and “wide reach” are framed so broadly that any carnival parody could fall foul of them. On top of that the reasoning on commerciality is wrong, and it will quite possibly (indeed undoubtedly) take on a life of its own.

More parodies in circulation

True, but that is not an argument.

The order

The judgment does not set out the claims, nor does it work through them. The order dismisses the claims. But the first claim in the prayer for relief was a declaration that this was a parody, or in the alternative a pastiche.

The judgment finds that there is a parody. You would then expect that to come back in the order.

On the basis of the balancing of interests, the claim seeking permission to exploit the track might then perhaps have been dismissed.

Costs

Finally, how can it be held on the one hand that this is a parody and therefore not an infringement of copyright, and on the other that the parodist must pay the full costs of the proceedings under article 1019h of the Dutch Code of Civil Procedure (€21,903)? That strikes me as odd.

What stays with me is that Universal, on the one hand, understands that this is a parody and that there is therefore no copyright infringement, but on the other hand does not want to see De Kapotte Kachels earn money from this carnival hit. After all, it was not in dispute between the parties that this was a parody (paragraph 3.9), but commercial exploitation was not to be permitted (paragraph 3.15).

I think it is a poor judgment, and I very much hope De Kapotte Kachels appeal after all (even though they had announced that they would not). I trust the Court of Appeal of Arnhem-Leeuwarden will see it differently.