The Moulinsart foundation, which manages (or, as you will see in the following, claims to manage) the rights to Hergé’s estate – in other words to Tintin – has lost an important law suit earlier this week against the Dutch association of tintinophiles, Hergé Genootschap.
Foreign press have reported superficially on this case, perhaps because the court’s verdict is in Dutch.
I speak Dutch however. What happened?
According to the verdict (PDF), the Hergé Genootschap was founded in 1999. As part of the services it provides to its members, it publishes a number of magazines which contain essays discussing the works of Hergé. Obviously critiquing a comic is greatly aided by quoting the comic, a technique the association employed.
Until 2009 the association had a working agreement with Moulinsart about the reproduction of images from the works of Hergé. In that year, Moulinsart introduced a new contract for all tintinophile associations to sign. This contract was presumably much more constrictive than the one that had existed between Moulinsart and Hergé Genootschap before and anyway the result was that initially the association refused to sign (but they caved in 2012). At that point things turned ugly. The association continued publishing its magazines and continued to include quotations from the works of Hergé. Moulinsart shouted ‘copyright infringement’ and after negotiations failed, demanded payments for the period 2009 – 2012 to the tune of 35,000 euro. (Some reports state that this is 35,000 euro per publication, but the court report doesn’t mention such a distinction.) Unsurprisingly, as one Belgian newspaper put it, the association refused to pay, and was sued.
Moulinsart lost the first law suit, which took place in 2012. The association had argued before the court that Dutch copyright law allows for the reproduction of copyrighted works under certain conditions (a principle called ‘fair dealing’ in legal circles), including the right to quote works in order to criticize them.
I am not sure why Moulinsart even took the road of attacking the fairly well established legal doctrine of fair dealing. I seem to remember reading in French newspapers that French courts ruled against the reproduction of frames from Tintin as a form of legal quotation. Maybe Moulinsart felt Dutch judges would be equally pliant?
And now comes the interesting part. Moulinsart appealed the decision but not on copyright grounds. They dropped the copyright claims altogether and instead focussed on a claim of breach of contract. The Hergé Genootschap, they argued, had had a contract with Moulinsart from 2012 onwards. The association replied that they could not have a contract with Moulinsart because – dun! dun! – Moulinsart did not control Hergé’s copyrights!
In a twist worthy of a Tintin adventure, the association produced a verified copy of a contract between Hergé and publisher Casterman, in which the former grants the latter exclusive reproduction rights for all Tintin albums. The association said that, on the basis of the contract, Moulinsart had misrepresented itself as a party who could negotiate Tintin rights and that therefore any contract between Moulinsart and Hergé Genootschap should be considered null and void.
The appeals court agreed with Hergé Genootschap’s position completely and ruled accordingly.
Could Moulinsart go all the way to the Dutch Supreme Court? I believe they have a good chance (note I am not a lawyer). The contract between Hergé and Casterman reads:
Art. 1 – Monsieur Georges Rémi concède aux établissements Casterman le droit exclusif de publication de la série des Albums Les Aventures de Tintin [...] parus ou à paraître, dont il est l’auteur sous le pseudonyme de Hergé.
Art. 2 – Le droit de publication concédé s’étend pour toutes éditions en langue française et étrangères.
I don’t speak French very well, but it seems that Hergé gives the exclusive right to publish both existing and future Tintin albums in both the original French and in other languages to Casterman.
To me this reads like a copyright license, not a copyright transfer. The latter means that in the eye of the law, you are now the holder of the copyright, in other words you control the copyright. Considering that as a franchise Tintin is about much more than just comic books and that it also includes newspaper and magazine syndication, films, merchandise and what have you, it’s obvious that Hergé did not transfer his rights. He did not even give exclusive rights to the comics to Casterman, only the right to produce books.
Assuming that the widow of Hergé still owns the copyrights and that she has appointed Moulinsart as the manager of those rights, there is no reason to see why Moulinsart could not negotiate with Hergé Genootschap about those same rights.
Moulinsart seems to have considered the association’s suggestion that Moulinsart did not manage the entirety of the Hergé estate so evidently irrelevant or untrue, that it refused to enter anything into evidence to counter the association’s claims, instead offering to provide the court with evidence at its request. In Dutch civil law there is a principle similar to the Anglo-Saxon preponderance of evidence, meaning that if you provide evidence of a thing (as Hergé Genootschap did) and the other party fails to provide evidence of the opposite (as Moulinsart did), the court now considers that thing to be a fact. The exception to this rule is if the claims you make are evidently untrue or preposterous, for instance if you said that the sky is green or up is down.
It seems to me that Moulinsart, as the representative of the copyright holder, can claim that it has every right to bring suit against tintinophile associations even for rights granted exclusively to other parties. The supreme court could agree with this position but would likely still uphold the verdict of the lower courts on the grounds that there is no copyright infringement (remember, Moulinsart dropped those charges!) and therefore no breach of contract – and would Moulinsart please pay the association 60,000 euro in lawyer fees. (Yes, that really is how insanely expensive IP cases are in the Netherlands.)
If Moulinsart lose an appeal to the Dutch Supreme Court, and it is very likely they would, they can still appeal to the European court, which has been creating a lot of copyright case law lately. As a result I am not confident to predict how such a last court of appeal would respond.
A thing I read between the lines of the verdict is that Moulinsart appear to have irritated the court by constantly changing their claims. The reason appeals courts exist in the Netherlands is that another set of judges can take a fresh look at the same case, but if you keep changing your demands, how much will a case remain the same? The result is that on every junction where the court could have been lenient towards Moulinsart, it took the hard line and said: “Denied!” Moulinsart wanted the Casterman contract to be refused as evidence because it was entered too late: denied! Moulinsart wanted the lawyer fees to be lowered because it was no longer a copyright case: denied! The only time the court denied something to the association, the court helpfully explains that this is because the association was going to win anyway.
(Note: the Moulinsart foundation is called Hergé Foundation in English. Note 2nd: the Dutch word the association uses for ‘misrepresentation’ is ‘dwaling’; although I could find no English translation for that word, ‘misrepresentation’ seems the closest fit.)