Moulinsart

Moulinsart Miss the Point (and the Law)

The owners of Tintin have made an official comment on copyright as an indirect response of the persecution of Tintin fan Bob Garcia. Unfortunately they have completely misrepresented the law of copyright as it stands in the UK and most of Europe.

Some maintain that Moulinsart keeps an iron grip on the rights it has acquired; on the contrary, we are the first to respect the freedom of expression. We have never prevented anyone from writing a book about Tintin, or any other aspect of Hergé’s life and work. We have total respect for authors!

If the author of a book about Tintin wants to illustrate it with pictures or photos taken from the work or life of Hergé, then it is only normal that we ask to read the manuscript first. This is also simply a basic freedom.

If a book is lacking quality or is intentionally negative, it is quite normal for us to feel that we shouldn’t allow the reproduction of frames taken from Hergé’s books, or drawings the author realised: if we were to allow the use of such images, we would give the impression of supporting the work in question….

Every year, hundreds of requests to use one or a number of pictures by Hergé are authorised, … In 2009, less than 10 requests were turned down: … We clearly inform those who would like to use one of Hergé’s drawings about certain rules which they are expected to honour.
(c) Moulinsart

Moulinsart are misrepresenting the law here.

Fair Dealing allows producers of books and other works to incorporate copyright images WITHOUT THE OWNERS PERMISSION. An author does not need seek permission from Moulinsart. An author does not need to send Moulinsart a copy of their work to get it approved. All an author needs to do is ensure that the use of copyright material is limited to a reasonable amount and acknowledge the copyright holder’s ownership.

This does not mean that anyone can grab a picture of Tintin and use it to sell their product. Fair Dealing only applies to reporting and critical analysis. I can use the copyrighted text above without asking permission only because I am analysing what they have said. This legal right places no restrictions on the quality of my work. This article could be rubbish or completely hostile to Moulinsart and I would still enjoy the legal protection of Fair Dealing as long as I limited the text I quote to a reasonable amount.

It is the question of “What is reasonable?” that Bob Garcia appears to have run foul of.

There is no defined legal limits as to how much can be used under Fair Dealing. It could by 10% or it could be 90% depending on the circumstance. Reproducing 100 words from a 200 word article is different from reproducing 100 words from a 100,000 word book.

The use of copyrighted materials also has to be relevant. I can quote the article above because it is relevant to the subject but I could not scatter this article with images of Tintin because they would not be relevant.

What is reasonable is a highly subjective issue and this is where authors and publishers get into trouble.

In the Bob Garcia case, it appears that he was right on the border between acceptable and unacceptable usage. When Moulinsart first sued, Mr Garcia won the initial case based on the idea of Fair Dealing. However Mounlinsart appealed and won.

No one is saying that Moulinsart should not protect their intellectual property rights. No one is saying that everyone should be able to use Tintin images to sell their products. What people are saying is that bankrupting a Tintin fan like Bob Garcia for producing a pamphlet in good faith is heavy handed and mean spirited.

Source: Tintin.com Copyright: the latest from Moulinsart.

4 Comments

  1. Pe-ads

    Man alive, they’re pushing the limit! In the third paragraph “If we feel the manuscript is lacking in quality…it is quite normal for us to feel that we shouldn’t allow the reproduction of frames.” What?

    Moulinsart really annoys the pants off me. Can’t they just follow the actual law? And if Bob Garcia was bordering on unfair usage, if they don’t mind it why can;t they just let him keep it? Why bankrupt him? He’s a CUSTOMER for crying out loud!

  2. Stuart

    I’ve edited and published a lot of authors who quote in-copyright writers and the legal advice I’ve received (and have passed on to my authors) is that one should always seek permission and not assume that ‘fair dealing’ will offer any kind of protection. I don’t know about the specifics of this case, but in most iterations of fair dealing, it is not a ‘legal right’ as you put it but a form of ‘defence’ which many lawyers (and judges) typically regard as a ‘weak defence.’ If a copyright holder is determined to push their rights, courts will typically side with them. Dealing with author’s estates is particularly problematic — I usually find authors themselves very understanding and willing to co-operate with small publishers, whereas agents and estates are more likely to want to protect what is to them an asset.

  3. admin

    @Stuart,

    For most authors and publishers there is no harm in clearing things with the copyright holder. It can save a lot problems in the long run but there is no legal requirement to do so.

    Here in the UK, Fair Dealing is explicitly enshrined in law and it has good case law to support it. Though to qualify as Fair Dealing there are a number of conditions that need to be met, e.g. acknowledgment of copyright.

    Chris

  4. The ruling laid on Garcia is completely disproportionate. He published 500 copies of an analysis of Tintin. It takes a very thin reading of the case to consider it as “contre-façon” (counterfeit). Who in their right minds would think they were buying a Tintin book in this case?

    The sum of €50,000 is also completely surreal. We’re not talking about someone who printed thousands of Tintin books to sell in a supermarket. What connection is there between that sum and the possible damages that Molinsart could have suffered?

    In addition to the obvious greed of Moulinsart, one has to question the judge in this case. What was he thinking?

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