‘If parody does not prickle it does not work’: Reflections on the Interpretive Challenges of Dark Parody in the Dutch and South African Courts

Abstract

Focusing on the nexus of humour and the right to free speech, this article introduces the concept of ‘dark parody’ to address parodies that reuse existing material with a dark, humorous twist and explores how courts deal with two of the main interpretive challenges presented by a ‘dark parody’: (1) interpreting the distance between the parody and the copyright/trademark protected work it parodies, and (2) its use of dark humour. Using a metahermeneutic approach, the article analyses how the main features of parody, the legal criteria applied to parody in courts of law, and the role of dark humour influence the judicial interpretation process regarding (dark) parody in the context of copyright and trademark law. Based on this analysis, the article proposes the theoretical framework of ‘parodic distance’ to address the interpretive challenges systematically presented by dark parody via six main categories—content, style, context, message, function and affect—from which the distance between a parody and the original can be interpreted. Applying this framework to two case studies [Mercis c.s. v. Punt.nl, Court of Appeal of Amsterdam; Laugh It Off Promotions v. South African Breweries, Constitutional Court of South Africa], the article provides a comparative analysis of how these courts currently deal with interpretive issues surrounding dark humour in copyright and trademark law and shows how the framework of parodic distance can be a potentially useful conceptual tool that provides a shared vocabulary to complement judicial interpretation and legal discourse at the nexus of dark parody and the law.

Full text

‘If Parody Does Not Prickle It Does Not Work’:
Reecons on the Interpreve Challenges of Dark
Parody in the Dutch and South African Courts
Melissa Luypaers, University of Groningen, Groningen, The Netherlands, m.m.b.luypaers@rug.nl
Focusing on the nexus of humour and the right to free speech, this arcle introduces the concept
of ‘dark parody’ to address parodies that reuse exisng material with a dark, humorous twist and
explores how courts deal with two of the main interpreve challenges presented by a ‘dark parody’:
(1) interpreng the distance between the parody and the copyright/trademark protected work it
parodies, and (2) its use of dark humour. Using a metahermeneuc approach, the arcle analyses
how the main features of parody, the legal criteria applied to parody in courts of law, and the role of
dark humour inuence the judicial interpretaon process regarding (dark) parody in the context of
copyright and trademark law. Based on this analysis, the arcle proposes the theorecal framework
of ‘parodic distance’ to address the interpreve challenges systemacally presented by dark parody
via six main categories—content, style, context, message, funcon and aect—from which the
distance between a parody and the original can be interpreted. Applying this framework to two
case studies [Mercis c.s. v. Punt.nl, Court of Appeal of Amsterdam; Laugh It O Promoons v. South
African Breweries, Constuonal Court of South Africa], the arcle provides a comparave analysis
of how these courts currently deal with interpreve issues surrounding dark humour in copyright
and trademark law and shows how the framework of parodic distance can be a potenally useful
conceptual tool that provides a shared vocabulary to complement judicial interpretaon and legal
discourse at the nexus of dark parody and the law.
Open Library of Humanies is a peer-reviewed open access journal published by the Open Library of Humanies. © 2024 The
Author(s). This is an open-access arcle distributed under the terms of the Creave Commons Aribuon 4.0 Internaonal
License (CC-BY 4.0), which permits unrestricted use, distribuon, and reproducon in any medium, provided the original
author and source are credited. See hp://creavecommons.org/licenses/by/4.0/.
OPEN ACCESS
Luypaers, M 2024 ‘If Parody Does Not Prickle It
Does Not Work’: Reecons on the Interpreve
Challenges of Dark Parody in the Dutch and South
African Courts. Open Library of Humanies, 10(2):
pp. 1–21. DOI: hps://doi.org/10.16995/olh.16695

2
Introducon
Parody, as a humorous expression of artistic creativity, invites critical and reflective
thinking about topics and tensions that often remain invisible or just under the surface
in democratic societies. As suggested by Judge Sachs in his concurrent vote on the
judgement in the case of Laugh It O Promotions v. South African Breweries (Constitutional
Court of South Africa, CCT42/04, 27 May 2005), ‘if parody does not prickle, it does not
work’ (para. 75). In other words, parody provokes, confronts and challenges the audience.
For this article, I define the concept of parody as follows:
Parody is a creative work that imitates—i.e., reproduces elements from—an original
work in a recognisable manner, while simultaneously transforming—i.e., changing
aspects of—this original work in a variety of ways, often with humorous intent or
eect. Parody can fulfil a range of functions and has the ability to evoke many dier-
ent emotions from an audience.1
While there are dierent perspectives and approaches to defining parody itself, legal
scholars agree that parody plays an important role in a democratic society, such as
expressing critical commentary on social issues. This situates parody within the tension
between the right to free speech (Art.19 Universal Declaration of Human Rights) and the
right to (intellectual) property (Art. 17 UDHR) (cf. Breemen and Breemen, 2022; Godioli
and Young, 2023; Jacques, 2019; Jacques and Derclaye, 2023; Lai, 2019). This is especially
true for instances of what I propose to call dark parody—a parody that imitates an existing
work and transforms it with dark humour. Dark parody can use various types of dark
humour to relocate an original work into the context of a situation or event considered
socially or culturally taboo. This article adopts the tentative definition of dark humour
presented by Godioli (2024), who defines dark humour in general as ‘a type of humour
where at least one of the scripts is normally associated with feelings of sadness, grief or
horror’ (129).2 Even though this article focuses mainly on the interpretive challenges
presented by dark parody in the realm of free speech and intellectual property (IP)
law, dark parody also presents notable challenges concerning free speech and other
fundamental rights, such as the right to dignity (Art. 1 UDHR) in cases where dark parody
functions as a vehicle for communicating (implicitly) discriminatory messages, such as
racist, sexist and ableist statements, blurring the boundaries with hate speech.
1 Although this is my own denion of parody, it is based on various scholarship on parody such as Genee (1987)
Hutcheon (2000), Denth (2000), Jacques (2019), and Breemen and Breemen (2022).
2 The concept of scripts used in this denion refers to linguisc theories of humour such as the General Theory of
Verbal Humour (cf. Aardo, 2001; 2017; 2020) that describes humour via the concept of ‘script opposion’—i.e., the
incongruity that underlies humorous texts and communicaon.

3
This article argues that the interpretation of the distance between a (dark) parody
and the original work and the interpretation of dark humour are two of the main
interpretive challenges courts deal with when confronted with a dark parody in the
context of copyright and trademark infringement allegations. Dark parody oers an
ideal case study to explore these two interpretive challenges in the broader framework
of humorous expression as part of the fundamental human right to freedom of
expression. In parody disputes, judges are tasked with balancing the interest of copyright
and trademark rights holders against the parodist’s right to freedom of expression,
including artistic expression such as dark parody, and these interpretive challenges
play an important role in the judicial interpretation in this balancing exercise.
The theoretical approach used to reflect on the judicial interpretive process
concerning dark parody will be meta-hermeneutics, a term coined by Korthals Altes
(2014) in the field of narratology. She defines meta-hermeneutics as an approach and
type of reflection that ‘relates interpretive argumentations to their underlying value-
laden conceptions and pathways’ (99). Adapting meta-hermeneutics as an approach
to the nexus of humour and the law, its application to judicial interpretation practices
focuses on reconstructing the conventional paths along which judges and courts of
law construct meaning, investigates the concepts used by courts, and explores why,
when and how courts interpret a parody as ‘distant enough’ from the original work
to be allowed as a humorous expression of IP-protected material. How the distance
between a (dark) parody and an original work is interpreted plays a fundamental role in
judicial decision-making, as it provides the grounds for the decision to allow or prohibit
said parody. As the analysis of the case studies will show, a systematic approach to
interpreting this distance is lacking in current judicial interpretive practices, which can
lead to inconsistent outcomes.
This article aims to create a theoretical framework that addresses this lack of
systematic test for interpreting the distance between a (dark) parody and an original
work. It does so by weaving together insights from both humanities-based humour
research and legal scholarship on intellectual property law, which each have their
own vocabulary, concepts and assumptions. This means that the article has a strong
theoretical focus and that the case studies serve mainly to illustrate the workings of
the theoretical framework. The resulting framework is meant as a conceptual tool to
support courts in developing an interpretation that considers all the complexities of
the (dark) parody under review, creating a stable ground for their decision-making
impacting freedom of expression. This is especially important when dealing with
dark parody, as the dark humour adds another layer of complexity to interpreting the
meaning and impact of said parody. Through their dark humour, dark parodies touch

4
upon what Tsakona (2020) has called ‘metapragmatic stereotypes’ of humour—i.e.,
the internalised models of humour people have, and ‘how it should be used, when, why,
and for what purposes’ (16). Dark parodies thus not only deal with the legal framework
of intellectual property law and the right to freedom of expression but also relate to
issues of morality, cultural values and societal beliefs about humour.
The first section shows how the interpretation of parody by courts is based on the
resonances between the main features of parody and the legal criteria in copyright
and trademark law and introduces the new concept of ‘dark parody’ to illustrate how
parody can be a medium for expressing dierent types of dark humour. Based on
these resonances, the second section proposes the interpretive framework of ‘parodic
distance’ for a systematic approach to interpreting both the distance between a dark
parody and the original and the (type of) dark humour used. The last section provides
a comparative analysis of two case studies revolving around dark parody: Mercis c.s. v.
Punt.nl (Court of Appeal of Amsterdam, LJN:BS7825, 13 September 2011) and Laugh It O
Promotions v. South African Breweries (Constitutional Court of South Africa, CCT42/04,
27 May 2005). A close reading and comparative analysis of the interpretive behaviour
of the courts in both cases oers a deeper understanding of the values underlying the
legal protection of dark parody in both legal systems.
Interpreng (Dark) Parody in Copyright and Trademark Law
Korthals Altes (2014) introduced meta-hermeneutic narratology to the field of literary
studies to investigate the conventions intervening in the meaning-making process,
which aect the reading experience, the relevance ascribed to a literary work, and
expectations a reader has regarding ethos (122). While designed to analyse the process
of narrative interpretation, meta-hermeneutics can be adapted to the process of
interpretation in general, as it is an approach that ‘strives to gain insight into the
processes and conditions of how people interpret’ (Korthals Altes, 2014: 37). As such, a
meta-hermeneutic approach to judicial interpretation of (dark) parody oers a way to
reconstruct the various interpretive routes judges take to make sense of a (dark) parody in
light of copyright and trademark law and invites reflection on the values and interpretive
procedures on which the divergent responses by courts to dark parody are based.
The structural, funconal, and aecve features of parody
Following legal scholarship on parody in the context of copyright law (Breemen and
Breemen, 2022; Jacques, 2019) and literary scholarship on parody (Genette, 1997;
Hutcheon, 2000), I propose to summarise the features of parody into three main
categories: structural, functional, and aective (see Figure 1). Based on Genette’s (1997)
literary theoretical insights regarding parody, Breemen and Breemen (2022) define the

5
structural features of parody as an ‘imitation, recognition of the original subject or
a close relationship between the parody and the original work’ (468). The structural
features of a parody, then, are the evocation of both a closeness with and a distance from
an original work. Parody both transforms the text and imitates and reproduces a certain
amount of an original work. Essential is that a parody acknowledges this reproduction,
which is necessary for audiences to recognise it as a parody (Jacques, 2019: 13).
The functional features of a parody illustrate how a parody can have a range of
functions that are satirical or ironic, such as providing social or political commentary,
creating entertainment by provoking laughter, or conveying criticism (Jacques, 2019: 5).
Lastly, Breemen and Breemen (2022) show how parodies can display a range of moods,
such as amusement, play, irony, satire, humorousness, and seriousness. I propose to
call these moods the aective features of parody, as a parody ‘by its own nature, seldom
causes feelings of indierence on the part of the targeted public’ (Ramalho, 2009: 71).
Parodies thus hold a structural tension between the imitation and transformation
of existing work, can fulfil a variety of dierent functions, and display (and evoke in the
audience) a range of moods. The structural paradox of imitation and transformation
inherent to parody is acknowledged in judicial interpretation. For example, in his
concurrent vote in the Laugh It O Promotions case, Judge Sachs states that:
Good parody is both original and parasitic, simultaneously creative and derivative.
The relationship between the trademark and the parody is that if the parody does not
take enough from the original trademark, the audience will not be able to recognise
the trademark and therefore not be able to understand the humour. Conversely, if
the parody takes too much it could be considered infringing, based upon the fact that
there is too much theft and too little originality, regardless of how funny the parody
is (para. 76).
Figure 1: The three main features of parody. Image created by the author using Canva.

6
Parody, then, is a balancing act in and of itself—it balances imitation and reproduction
with creative transformation. This structural balancing act at the centre of the parody
itself seems echoed in the balancing exercise judges engage in when considering if a
parody keeps enough distance from the original work to be a lawful expression instead
of a copyright or trademark infringement. Indeed,
parody typically is situated in the very middle of the tension that exists between
copyright law and freedom of expression …, arguably precisely due to the close rela-
tionship that is required between the parodied work and the parody (Breemen and
Breemen, 2022: 473).
Parody thus oers a way to examine the tension between freedom of expression and
copyright and trademark law.
Parody in copyright and trademark law
In the context of copyright law, Jongsma (2017) identified three common explicit criteria
regarding the legal permissibility of parody employed by the national courts of Belgium,
France, Germany and The Netherlands, namely (1) humorous intention, (2) absence of
intention to either profit from or compete with the original work, and (3) the absence
of risking confusion between parody and original work. In addition, he outlined various
implicit criteria that play a role in some courts, such as the absence of harmful intention,
the importance of originality, the borrowing of original work limited to necessary
elements, original work as the target of the parody, and the importance to respect moral
rights (654-664). In the context of trademark law, Ramalho (2009) identified three legal
criteria courts generally consider in the European legal regime and the national courts
of Germany, France and Spain when dealing with the interpretive challenges of (dark)
parody: (1) likelihood of confusion, (2) unfair advantage, and (3) potential detriment to the
distinctive character or reputation of a trademark—i.e., dilution or tarnishment. As there
is an overlap between the legal criteria regarding parody in copyright and trademark law,
I propose to summarise these legal criteria via four main categories: humour, confusion,
profit or competition, and detriment. These categories reflect both the main aspects
courts consider in parody disputes and the cultural and societal values that underly these
legal criteria, which influence the judicial interpretive process.
The humour category is related to the legal criteria of humorous intent or eect of the
parody; this category considers the use and role of humour in the parody and underlines
the status of a parody as a humorous expression of IP-protected material. As it deals
with both the purpose of a parody and the mood it evokes from its target audience, this
category is one of the ways a parody transforms the original work via a parody’s functional
and aective features. The confusion category underlines the importance courts place on

7
the legal criteria of the likelihood of confusion between the parody and the original work;
this category resonates with a parody’s structural feature as it considers how much and
what elements the parody reproduces from the original work. The profit or competition
category considers if the parody profits or intends to profit from or compete with the
original work and is also related to the principle of unfair advantage. In trademark law,
when dealing with well-known trademarks that have a reputation, the likelihood of
confusion criteria is often considered insucient for deciding on the permissibility of a
trademark parody. In these cases, courts can lean on the criteria of unfair advantage. The
rationale behind the unfair advantage principle is to protect the trademark right holder
against a parody’s use of the trademark in a manner that results in unfair competition
with the parodied trademark and can be considered free riding—i.e., ‘the obtaining of
more benefits than one’s fair share at the expense of others’ (Ramalho, 2009: 69). This
category is closely related to the functional features of parody, as it considers the purpose
of the parody, such as communication or competition with the original work.
Lastly, the category of detriment refers to the implicit legal criteria of absence of
harmful intent in copyright law and the principle of detriment to the distinctive character
(dilution) or reputation of the trademark (tarnishment) in trademark law.3 This category
relates mainly to the aective features of parody, as it focuses on the emotional eect the
parody has on its targeted audience. The rationale underlying the detriment principles is
to protect the commercial investment of the trademark holder against both blurring the
uniqueness of the trademark and the creation of a negative mental association with the
trademark in the mind of the consumer and public caused by the parody. See Figure 2 for
a visual summary of the four main categories of legal criteria.
3
In legal discourse, tarnishment refers to the use of a trademark in a way that is detrimental to its reputaon.
Figure 2: The four main categories of legal criteria for parody in the context of copyright and
trademark law. Image created by the author using Canva.

8
Dark humour and parody: Introducing the concept of ‘dark parody’
The category of detriment is especially relevant when dealing with parodies that reuse
an existing work and transform it with dark humour. Here, I propose to introduce the
concept of ‘dark parody’ to address these particular types of parodies. Since dark humour
is a main characteristic of dark parody, the definition of dark humour and three basic
types of dark humour proposed by Godioli (2024) are useful to better understand and
interpret dark parody and its legal protection in the context of copyright and trademark
law. Godioli (2024) defines dark humour as a humorous expression in which one of
the scripts creating the incongruity necessary for humour can consist of
three fundamental elements: (1) A sinister event, subject or scenario that usually has
a taboo status, at least in the sense that it should not be addressed within a humor-
ous context; (2) The victim(s) of said event; (3) The perpetrators (when applicable,
as is the case with a crime), enablers or passive bystanders of the sinister event ref-
erenced (131).
In essence, scripts are ‘ideas, thoughts or meanings’ (Attardo, 2020: 116) that are
activated in the mind of the audience by the text. The opposition of scripts creates a
humorous incongruity that triggers ‘a shift from the automatic interpretation of a
given sentence or situation, to a more unusual or unpredictable one’ (Godioli, 2024:
128). Based on these three elements, Godioli (2024) distinguishes three fundamental
variants of dark humour—taboo-breaking, disparaging and sarcastic dark humour. As
taboo-breaking dark humour aims to question the status of a given ‘dark’ event or
subject as taboo by making it part of the humorous expression, I argue this type of
dark humour relates to the aective feature of dark parody through the pleasure of the
cognitive reward an interpreter derives from the playful conflict of emotions generally
regarded as opposites (such as mirth and horror) or the psychological and/or emotional
relief that an interpreter experiences by using taboo-breaking dark humour as a way to
cope with realities that are experienced as unpleasant or traumatic. The functions of
this type of dark parody could be interpreted as entertainment, a coping mechanism or
criticising of the taboo status of the subject (Godioli, 2024: 134). In contrast, disparaging
dark humour targets the victims of the dark event evoked by the humorous expression,
thereby reinforcing negative prejudices about its target. Since the victim(s) of a dark
scenario is the target of disparaging dark humour, this type of dark humour relates
to the aective dimension of a dark parody through the pleasure derived from feelings
of superiority towards the target of the parody. Borrowing from Raul Perez’s work on
racist humour, I suggest calling this emotional state and aective mechanism ‘amused
contempt’—i.e., feelings of pleasure and amusement from feeling superior towards the

9
targeted victims.4 If the humorous aspect of a dark parody is interpreted as disparaging
dark humour, the functional feature of dark parody can be a reinforcement of negative
prejudices that can be harmful to the target of the dark parody. Lastly, as the intention
behind sarcastic dark humour is to expose someone’s inhuman behaviour, I argue that
the relation between sarcastic dark humour and the aective feature of parody lies in
the pleasure or satisfaction derived from holding someone else accountable for their
inhumanity and relates to the functional feature of dark parody that exposes inhumane
or unethical behaviour of its target. At times, it can be dicult to distinguish between
disparaging and sarcastic dark humour, as the latter often reproduces disparaging
humorous expressions by other people in a satirical way to criticise this behaviour
(Godioli, 2024: 137). Table 1 oers a visual summary of how the three types of dark
humour can relate to the functional and aective features of dark parody:
Due to its provocative and shocking nature, dark parody is not only a place where
the boundaries between freedom of expression and intellectual property law intersect
but also a space where the limits of humorous expression are subject to discussion. In
general, humorous expression is legally protected by the right to freedom of expression
(Article 19 of the International Covenant on Civil and Political Rights), which includes
humorous expressions that are provocative or shocking.5 However, dark humorous
expressions seem to encounter the limit of the right to freedom of expression faster
than other forms of humorous expression, especially when interpreted as disparaging
dark humour. As the analysis of the case studies in section three will illustrate, courts
tend to interpret dark parody as an expression of disparaging dark humour, which
then can be considered unlawful concerning the legal criteria of harm and detriment
to the reputation of a trademark or original work. While disparaging dark humour is
generally considered a harmful expression that is subject to legal restriction, I argue
4 In his book The Souls of White Jokes (2022), Perez coins the term ‘amused racial contempt’ to describe the shared
emoonal state and aecve mechanism through which white people derive amusement, pleasure and solidarity from
laughing at people of colour (Perez, 2022: 8).
5 The ICCPR is a mullateral treaty that is legally binding for the countries that sign it to respect an individual’s civil and
polical rights, and Arcle 19 encompasses the right to freedom of expression.
TABOO-BREAKING DISPARAGING SARCASTIC
FUNCTION entertainment
coping mechanism
cricism taboo status of a
subject
reinforcement of negave
stereotypes or prejudices
cricism/exposure of
inhuman behaviour
or way of thinking
AFFECT pleasure of cognive reward
relief from uncomfortable
emoons
amused contempt moral emoons
Table 1: The resonances of funconal and aecve features and the three types of dark humour.

10
that taboo-breaking and sarcastic dark humour embodies an important aspect that the
right to freedom of expression aims to protect, namely the opportunity to reflect on and
challenge dominant ways of thinking, and to expose unethical behaviour. By creating
a conceptual tool and shared vocabulary to distinguish between dierent types of dark
humour and how they relate to the distance between the dark parody and the original
work, this article aims to support courts in navigating the questions surrounding the
legal protection of these types of humour that, while being provocative and shocking,
can also play an important role in democratic societies.
The Interpreve Framework of ‘Parodic Distance’
As the previous section has shown, interpreting both the distance between a parody
and the original work, and the meaning and function of dark humour are two of the
main interpretive challenges judges face when dealing with dark parody in the context
of copyright and trademark law. To address these interpretive challenges, this section
proposes an interpretive framework that I call ‘parodic distance’ to conceptualise how
the distance between a dark parody and the original work can be interpreted via six
categories: content, style, context, message, function, and aect. This framework builds
on the resonances between the structural, functional and aective features of a (dark)
parody and the main categories of the legal criteria regarding parody in copyright and
trademark law discussed in the previous section. Each category considers the distance
between the parody and the IP-protected material and how it can be interpreted from
a dierent perspective. Figure 3 oers a visual representation of the relation between
these categories.
Figure 3: The nested model of the parodic distance framework, showing how each category
relates to the other. Image created by the author using Canva.

11
The interpretive framework of parodic distance can be considered an exercise in
interpretive comparison between a parody and the original work in six dierent ways
that build on each other. The category of content forms the basis of the framework, as it
observes the parody and looks at what is there. From this perspective, the interpretation
of parodic distance considers the similarities between the parody and the original work
in what, and which, amount of the original work the parody imitates and reproduces.
The category of style builds on this category as it centres on how the content is presented
by the parody. Looking at parodic distance from this perspective means considering the
similarities and dierences between a parody and the original not based on how much
of the original work is imitated, but how the original work is imitated and reproduced.
Both content and style are closely related to the structural features of parody and the
legal category of confusion. The context category interprets the parodic distance by
looking at the context into which an original work is relocated and thus considers where
the original work is relocated to. Building on the previous categories, interpreting the
parodic distance via the category of context means looking at how a parody relocates
the imitated amounts of the original work to a dierent social, political, commercial, or
cultural context via a specific medium, for example, memes, T-shirts, or images on the
internet. It is thus closely linked to a parody’s structural feature and the legal category
of confusion. The message category considers the parodic distance by looking at what the
parody says and compares this with the message of the original text. It thus considers the
communicative aspect of the parody. This category relates closely to the functional and
aective features of parody and therefore the legal categories of humour and detriment.
The function category builds on the previous categories and looks at the purpose of the
parody and asks the interpretive question if the parody has a commercial, entertainment,
social or political purpose. It considers the aim of a parody in juxtaposition with the
aim of the original work and is closely connected to a parody’s functional feature and
the legal category of competition or profit. Lastly, the category of aect interprets the
parodic distance by looking at the emotional response to a parody such as amusement,
mirth, indignation, shock etc. In the case of dark parody, there is an additional aective
response based on socio-cultural beliefs surrounding humour production, namely the
belief that the subject matter should not be subjected to humorous treatment. Depending
on the type of dark humour used by the parodist, the aective distance can be interpreted
as pleasure of cognitive reward, relief from uncomfortable emotions, amused contempt,
or emotions related to ethical beliefs. The interpretive category of aect thus relates
closely to the aective features of a dark parody and the legal category of detriment.
Since the framework of parodic distance is based on insights from literary studies,
humour studies and legal scholarship on parody, it is important to highlight that courts

12
do consider these aspects in their interpretation of parodic distance when dealing with
(dark) parody in the context of copyright and trademark law. However, as the analysis of
the judicial interpretation in the two case studies in the following section will show, due
to the lack of a consistent test for evaluating the distance between a parody and original
work, these aspects are generally closely entangled with each other and not every aspect
is considered in each parody-dispute, which often results in divergent interpretations
and unpredictable decisions regarding the legal permissibility of dark parodies.
Dark Parody in the Dutch and South African Courts: A Comparave Analysis
Dark Miy: reimaging Miy with taboo-breaking dark humour
In 2009, Miy, the famous and beloved Dutch children’s figure of a rabbit created by
Dick Bruna, was at the heart of a dark parody dispute at the Amsterdam District Court.6
The case revolved around the online publication of seven images portraying Miy in
relation to drug use and terrorism, generally considered topics with a taboo status in
humorous expression. Bruna and Mercis considered the use of Miy in these images as
an infringement of their copyright and trademark rights.7 Punt.nl, the hosting provider
of the websites that published the images, invoked the parody exception as a defence. The
Netherlands has an explicit exception for parody incorporated in copyright law (Art. 18b)
and the legal treatment of parody in the national court of the Netherlands includes the
criteria for humorous intention or humorous result, absence of competitive motivation,
and absence of risking confusion between parody and the original work (Jongsma, 2017:
656-7). The parody exception in Dutch copyright law adds one specific requirement to
determining the lawfulness of a parody, namely that the parody is ‘in accordance with
what is regarded as reasonably accepted under rules of social custom’ (Art. 18b). The
Netherlands has no explicit exception for parodies in trademark law, and while a trademark
parody is allowed to reproduce elements of the trademark, it should be distanced from
the trademark. In other words, it ‘should be suciently clear that the parody does not
originate from the trademark owner’ (2009, para. 4.7; translation my own).8
The proceedings focused on the question of whether the images fell under the
parody exception, which would justify the publication of the images online. As such,
the judicial interpretation of the images centred mainly on interpreting the distance
between the parody and the original and determining if this distance was ‘sucient’.
The Amsterdam District Court first established Miy as an original work protected by
6 Unless stated otherwise, all translaons of the citaons from the cases ECLI:NL:RBAMS:2009:BK7383 and ECLI:N-
L:GHAMS:2011:BS7825 are mine.
7 Mercis is the company that owns the copy and trademark rights for Miy.
8 ‘Het moet voldoende duidelijk zijn dat de parodie niet aomsg is van de merkgerechgde’ [2009, para. 4.7].

13
copyright law and that the contested images reproduced the copyrighted features of
Miy. The Court allowed five of the seven images based on the Dutch parody exception
in copyright law, because of their ‘humorous intent, lack of competitive intent and
lack of likelihood of confusion’ (2009, para. 4.3).9 For the Court these images held
sucient distance from the original work. However, the Court decided that the
images ‘Nijntje staat strak’ [Miy under influence] and ‘nijn-eleven’ (see Figure 4),
did not need to be considered in relation to the Dutch parody-exception in copyright
law, and only considered these images in relation to trademark law.10 In the context of
trademark law, the Court considered if the parody circulated in goods and services—
i.e., commercial purpose—, if the parody, without due course, took unfair advantage
of the trademark, or if it was detrimental to the distinctiveness or reputation of the
trademark. In relation to the images ‘Nijntje staat strak’ and ‘nijn-eleven’, the Court
determined that there was no commercial purpose and that the images did not take
unfair advantage of the trademark. However, the Court stated that the images were
almost identical reproductions of the original work and thus did not keep sucient
distance from the trademark and were ‘detrimental to the reputation of the trademarks
because Miy is associated with drug use and terrorism’ (para. 4.9).11
In 2011, however, the Amsterdam Court of Appeal overturned this decision and
stated that both ‘Nijntje staat strak’ and ‘nijn-eleven’ can evidently be identified as a
parody via
9 ‘de humorissche bedoeling, het ontbreken van concurrenebedoelingen en het ontbreken van verwarringsgevaar’
(2009, para. 4.3).
10 ‘staat strak’ is a Dutch expression that means being under the inuence of smulants.
11 ‘areuk aan de reputae van de merken omdat Nijntje in verband wordt gebracht met drugsgebruik en terrorisme’
(2009, para. 4.9).
Figure 4: The contested images ‘Nijntje staat strak’ and ‘nijn-eleven’. Images: unknown author,
published in the case of Mercis c.s. v. Punt.nl, 2009: para. 2.3.

14
the greatly enlarged eyes and the added image on the shirt in [Nijntje staat strak]
and the added apartment building in [nijn-eleven], … combined with the accompa-
nying texts … while maintaining the recognizability of the original necessary for a
parody, sucient distance from the original has been taken so that the parody can-
not be considered a blind copy (2011, para. 4.13).12
In their approach to the interpretive challenges of the dark parodies ‘Nijntje staat strak’
and ‘nijn-eleven’, the Amsterdam District Court and the Amsterdam Court of Appeals
focused mainly on the similarities and dierences in content and style between the
parodies and the original work in relation to the parody-exception in Dutch copyright
law. In the context of trademark law, however, the Amsterdam District Court also
considered the function of the parodies—i.e., do they have a commercial purpose,
or does it take unfair advantage of the trademark—and the aect presented by the
parody—i.e., are the parodies detrimental to the trademark’s reputation without due
cause. The Amsterdam District Court even decided that freedom of expression did not
constitute due cause to allow the images, as they did not express an opinion or contribute
to the public debate. The dierence in judgement by both courts on the admissibility of
‘Nijntje staat strak’ and ‘nijn-eleven’, illustrates how the absence of a framework that
supports a systematic interpretation of dark parody has significant consequences for
the legal protection of taboo-breaking dark humour.
The ‘Black Labour, White Guilt’ parody: Reimagining beer with sarcasc dark humour
The Laugh It O Promotions v. South African Breweries case (Constitutional Court of
South Africa, CCT42/04, 27 May 2005) centres on dark parody and trademark law.
This trademark infringement case revolves around a dark parody of the well-known
trademark Carling Black Label (‘America’s lusty lively beer; Black Label; Carling Beer;
enjoyed by men around the world’) by the clothing company Laugh It O Promotions
CC, who printed their parody on T-shirts with the intent of social commentary and profit
(Godioli and Young, 2023: 29). The T-shirt presented a print with a strong likeness to
the Black Label trademark with the text ‘Africa’s lusty lively exploitation since 1652;
black labour; white guilt; no regard given worldwide’. The owner of the trademark,
South African Breweries (SAB) brought legal action to prohibit the use of its trademark
by Laugh It O Promotions, arguing that the parody caused economic harm and damage
12 ‘Door de sterk vergrote ogen en het toegevoegde plaatje op het shirtje in [Nijntje staat strak] en het toegevoegde
atgebouw in [nijn-eleven], in combinae met de begeleidende teksten … is, met behoud van de voor een parodie
noodzakelijke herkenbaarheid van het origineel, voldoende afstand tot het origineel genomen om de parodie niet als
een klakkeloze kopie aan te merken’ (2011, para. 4.13).

15
to the reputation of its trademark via the oensive and ridiculing parodic message it
expressed. In its defence, Laugh It O Promotions argued that the social criticism the
parody expressed is protected by the constitutional right to freedom of expression.
After going through the High Court and the Supreme Court of Appeals, the parody
dispute eventually ended up in the South African Constitutional Court. Both the High
Court and the Supreme Court of Appeals adopted the interpretation of the parody
presented by the plainti (SAB), who argued that the meaning of the parodic message
is that ‘since time immemorial SAB had exploited and still is exploiting black labour,
that it has and should have a feeling of guilt, and that SAB worldwide could not care less’
(para. 20). According to the High Court, this interpretation was ‘evidently correct’ and
they did not consider any other alternative interpretations of the trademark parody.
Based on this interpretation, the High Court considered the parody to border on hate
speech due to its connection to race and found that
the expression on the T-shirt is substantially detrimental to the repute of the marks;
that it is likely to create in the minds of consumers a ‘particularly unwholesome,
unsavoury, or degrading association’ with the marks because it is an ‘unfair’ and
‘unjustified racial slur’ on the trademark owner … the message questions the repu-
tation of the marks and by that very act has unfairly and materially tarnished the
marks (para. 21).
In addition, both courts determined the right to freedom of expression irrelevant
to the defence, as Laugh It O Promotions used the brand on T-shirts to generate
profit and the courts considered the medium (the T-shirt) unnecessary to convey the
message, i.e., the criticism could be expressed in other ways than the T-shirt with the
strong likeness of SAB beers. The South African Constitutional Court disagreed and
overturned the decision of the Supreme Court of Appeals. While Judge Moseneke, who
delivered the judgment of the Constitutional Court, agreed that the trademark enjoys
protection against usage that causes material damage to its reputation, he argued that
SAB failed to establish the likelihood of economic harm. However, he explicitly refused
to consider if the dark parody would be protected by the constitutional right to freedom
of expression, deeming the trademark parody admissible ‘based on technical grounds
in light of the Trademarks Act’ (Godioli and Young, 2023: 29). In this case, then,
the courts considered only the categories of function and aect in their interpretive
process—they only looked at the potential economic harm to the trademark holder due
to the parody causing detriment to the trademark’s reputation, and only allowed the
parody based on the lack of evidence that supported the claim of economic damages by
the plainti.

16
A comparave analysis: The framework of parodic distance
As the analysis of the case studies showed, a systematic approach to the interpretive
challenges of dark parodies is lacking in current judicial interpretive practices and leads
to inconsistent outcomes. In both case studies, the courts’ initial interpretation of both
the distance between the dark parody and the original, and the use of dark humour,
led to a decision to prohibit the dark parody and thus contract freedom of expression,
which was then overturned in subsequent appeal cases. In addition, it is worth noting
that the court claimed (part of) their interpretation to be ‘evident’ without oering
detailed arguments for this claim in both cases. In the Miy case, the Amsterdam Court
of Appeals stated that the likeness of Miy was ‘evidently’ parodic use (para. 4.13), and
in the Laugh it O case the Supreme Court of Appeals claims the interpretation of the
trademark parody as bordering on hate speech as ‘evidently correct’ (para. 20; 60).
I argue that the claim of a particular interpretation of an expression being
evident is a superficial argument at best, and a problematic one at worst, as it
ignores the complexity of the meaning expressed by a dark parody, and it conveys a
lack of transparency regarding the assumptions and values underlying a particular
interpretation. As both case studies show, it is clearly not evident when a parody
holds enough distance from an original work or when the dark humour used can be
considered hate speech (disparaging dark humour), a challenge to metapragmatic
stereotypes about humour (taboo-breaking dark humour), or exposing inhuman
attitudes (sarcastic dark humour). The parodic distance framework oers courts a
conceptual tool to deal with the interpretive challenges of dark parody in a systematic
way, and creates a shared vocabulary to both address the complexity of dark parodies
and make the underlying assumptions and values in the judicial interpretation process
visible. To illustrate this, the next section analyses the ‘nijn-eleven’ and the ‘Black
Labour, White Guilt’ parodies from all six interpretive categories, and provides a
comparative overview at the end.13
From the content category, the ‘nijn-eleven’ parody reproduced the airplane with
Miy identically from the original book cover, added an apartment building on the right
side of the airplane, and changed the text from the original ‘Nijntje vliegt’ [Miy flies]
into ‘nijn-eleven’ . Looking at the style, the ‘nijn-elven’ parody is an exact imitation
of the original work, the building is drawn in the exact same style of the original
and the lettering used is also similar to the original. From the context category the
13 For the sake of clarity of the analysis as well as the comparison later with the African Breweries case, I have chosen
to focus only on the ‘nijn-eleven’ parody. My choice to focus on the ‘nijn-eleven’ parody instead of the ‘nijntje staat
strak’ parody is based on the argument that the linking of innocent children’s gure to Islamic terrorism creates a more
extreme opposion of scripts to analyse with this framework.

17
‘nijn-eleven’ parody relocates the well-beloved children’s character to the context of
the 9/11 terrorist attacks on the Twin Towers in 2001 by portraying Miy in an airplane
flying towards the building and using the text ‘nijn-eleven’, a humorous wordplay on
the Dutch word ‘Nijntje’ [Miy] and English word ‘nine’, which sound similar. The
message, since the parody portrays a sinister event and not the victims or perpetrators
of the event, could be interpreted as questioning terrorism as a subject with taboo status
in humorous expression or questioning the ‘innocent’ character of Miy. Regarding the
interpretive category of function, the ‘nijn-eleven’ parody could be considered a simple
entertainment because of the pun, which is only directly understandable for Dutch
speakers, and the taboo-breaking eect of the dark humour. From the aect category,
the parody can be interpreted as generating a feeling of pleasure from the cognitive
reward of dealing with opposite emotions, for example mirth from the humorous pun
and feeling horrified to be laughing at a parody that makes the 9/11 terrorist attacks
the subject of humorous expression. Considering the interpretive challenge of dark
humour presented by the dark parody, the ‘nijn-eleven’ parody could be interpreted as
taboo-breaking dark humour, which engages in the questioning of a subject’s cultural
and social taboo status—an important role of humorous expression protected by the
right to freedom of (artistic) expression.
Based on this systematic analysis, it becomes clear that even though ‘nijn-eleven’
is identical in style, in terms of content, context, message, function, and aect, the
parody is quite dierent from the original work by Dick Bruna. Applying the parodic
distance framework oers a fundamentally dierent interpretation compared to the
interpretation of the Amsterdam District Court and challenges the Court’s argument
that the ‘nijn-eleven’ parody causes detriment to the trademark’s reputation without
due cause. By showing how the use of dark humour in the ‘nijn-eleven’ parody can
be interpreted as taboo-breaking dark humour, the analysis argues that the parody
challenges the metapragmatic stereotypes about humour in Dutch society, which,
arguably, can be considered an important contribution to the public debate. In addition,
the interpretation resulting from the application of the parodic distance framework
questions the claim of the Amsterdam Court of Appeals that the distance between
the parody and original work is ‘evident’, as the interpretation and decision of the
Amsterdam District Court was significantly dierent.
When applying the interpretive framework of parodic distance to the parody of
‘Black Labour, White Guilt’, the categories of content and style illustrate how the
parody imitates the Black Label trademark style while simultaneously changing
most of the textual elements by replacing ‘Black Label’ with ‘Black Labour’, ‘Carling
Beer’ with ‘White Guilt’ and ‘America’s lusty lively beer […] Enjoyed by men

18
around the world’ with ‘Africa’s lusty lively exploitation since 1652 […] No regard
given worldwide’. The dark parody thus alters the wording of the trademark while
copying its style. On a context level, the parody can be interpreted as relocating the
trademark into the social, political and cultural context of black labour exploitation
as well as a physical relocation of the trademark from beer bottles to T-shirts. The
exploitation of black labour generally tends to be considered a taboo subject for
the usage of humorous expression and, as seen in the judgement of the High Court
(who interpreted it as bordering on hate speech) can easily be interpreted dierently
than intended by the parodist. While the High Court and the Supreme Court of
Appeals interpreted the parodic message as a racial slur on the trademark owners,
Judge Sachs, in his concurring vote on the judgement from the Constitutional Court,
interpreted the message as intended by Laugh It O Promotions: namely, to expose
how much power brands hold in society. The function, then, could be interpreted as
a social criticism targeting the position of power brands hold in cultural and social
life, instead of causing harm to the brand’s trademark. Lastly, from the perspective of
aect the High Court and Supreme Court of Appeals considered the parody to create
a degrading association between the trademark and the exploitation of black labour,
likely interpreting the use of humour in the parody as disparaging dark humour. Judge
Sachs’ interpretation, however, shifts the interpretation from disparaging to sarcastic
dark humour, as he recognises the use of humour as the intent to make people laugh by
ridiculing the dominant position of power well-known brands enjoy in society. This
illustrates the blurred lines between disparaging and sarcastic dark humour, and only
through a systematic analysis, it becomes clearer why interpreting the dark humour
used by the ‘Black Labour, White Guilt’ parody as sarcastic dark humour seems more
plausible.
Similar to the case of the ‘nijn-eleven’ parody, the application of the parodic
distance framework results in a significantly dierent interpretation of both the
distance between the parody and the trademark, and the type of dark humour used by
the parody. While the Constitutional Court’s decision to overturn the judgement from
previous courts is in line with the interpretation suggested by the parodic distance
framework, it is worth underlining that this decision was only based on the lack of
evidence supporting the claim of economic damages presented by the plainti. It is
worth asking, then, how the Court would have navigated the legal protection of the
dark parody, which conveyed valuable social criticism via its use of sarcastic dark
humour, had this lack of evidence not been the case. Table 2 below oers a comparative
overview of the systematic analysis of both dark parodies with the parodic distance
framework.

19
Conclusion
This article has shown that dark parody is regularly found at the heart of copyright and
trademark infringement cases and is thus closely related to the question of the legal
protection of humorous expression under the right to free speech. The use of dark humour
in parodies makes the invisible metapragmatic stereotypes about humour—i.e., the
cultural beliefs and taboos regarding what can be the subject of humorous expression and
what cannot—visible. This complicates the already complex interpretation of humorous
uses of IP-protected material, such as dark parodies, even more. Interpretation, as the
metahermeneutic approach in this article has demonstrated, plays a fundamental role
in legal decision-making surrounding dark parody, which impacts the right to freedom
of expression. Weaving together insights from humour theory, literary studies and legal
scholarship on intellectual property law, this article proposed a new way of thinking
about how to navigate the interpretation of a complex form of humorous expression—
i.e., dark parody—in the context of humour and the law. Reflecting on the interpretive
challenges courts face when dealing with dark parody provided the opportunity to create
what I have called the ‘parodic distance’ framework: a conceptual tool that oers both a
systematic approach to deal with these interpretive challenges and a shared vocabulary
to support courts in navigating the complex process of interpreting both the distance
between parody and original, and their use of dark humour.
Applying the framework of parodic distance to the judicial interpretation process of
both case studies showed how this interpretive framework can be used to systematically
address the interpretive challenges posed by distance and dark humour. While the
analyses resulting from the systematic application of the parodic distance framework
Mercis c.s. v. Punt.nl Laugh It O Promoons v. South African
Breweries
Content Reproducon and addion of textual
and visual elements
Reproducon of elements but mainly
change in wording
Style Reproducon Reproducon
Context Relocaon to 9/11 terrorist aacks
(sinister event)
Relocaon to exploitaon of black
labour by companies (perpetrators sin-
ister scenario)
Message Quesoning taboo status 9/11 or the
innocent character Miy
Exposing the power of brands in soci-
ety
Funcon Entertainment and reecon Social cricism (communicaon) v.
adversement (commercial)
Aect Cognive reward opposite emoons Moral emoons
Table 2: Comparave overview interpretaon dark parodies ‘nijn-eleven’ and ‘Black Labour,
White Guilt’.

20
supported the Amsterdam Court of Appeal’s and the Constitutional Court of South
Africa’s decisions, they also presented a sharp contrast to the interpretation of parodic
distance and dark humour by previous courts, and questioned the courts’ reliance on
the claim that (a part of) their interpretation was evident. In addition, the application of
the parodic distance framework provided a more elaborate explanation of how and why
the parody held sucient distant from the original work, and illustrated the role taboo
breaking humour and sarcastic dark humour played in the ‘nijn-eleven’ and ‘Black
Labour, White Guilt’ parodies. The cases discussed in this article centred on the use of
taboo-breaking and sarcastic dark humour in dark parodies at the heart of two legal
cases, but did not yet consider dark parodies using disparaging dark humour in relation
to the copyright and trademark law. Two relevant cases can be mentioned here, namely
the case of Deckmyn v. Vandersteen (Court of Justice of the European Union, C-201/13, 3
September 2014) and the case of Furie v. Infowars (United States District Court for the
Central District of California, CV 18-1830-MWF, 16 May 2019). Both legal cases deal
with dark parodies that use IP-protected material—Spike and Suzy (Suske en Wiske in
Dutch) and Pepe the Frog respectively—and co-opted by the alt-right to disseminate
discriminatory messages under the guise of ‘humour’ and parody. These cases could
oer a possible avenue for further research into the judicial interpretation process
and the legal protection (and limits) of dark parody, and dark humour in general, in
the context of intellectual property law. As the analysis of the judicial interpretation
in the case studies considered in this article demonstrated; how courts deal with the
interpretive challenges posed by dark parody strongly influences their decision to
either allow or prohibit the dark parody, and thus either expand or contract freedom of
(humorous) expression.

21
Acknowledgements
I would like to thank the editors as well as Alberto Godioli (University of Groningen) and Judith
Jansma (University of Groningen) for their insighul comments and suggesons during the revision
of this arcle. Of course, any errors or shortcomings remain my responsibility.
Compeng Interests
The author has no compeng interests to declare.
References
Breemen, K, and Breemen, V 2022 Imagining Interdisciplinary Dialogue in the European Court
of Jusce’s Deckmyn Decision: Conceptual Challenges When Law and Technology Regulate
Parody. Humor, 35(3): 447–482. hps://doi.org/10.1515/humor-2021-0119
Denth, S 2000 Parody. Routledge. hps://doi.org/10.4324/9780203451335
Genee, G 1997 Palimpsests: Literature in the Second Degree. (C. Newman and C. Doubinsky, Trans.)
(Ser. Stages, v. 8). University of Nebraska Press
Godioli, A 2024 Joking Against Humanity? Dark Humor and (De)familiarizaon. In: Bayraktar, N.,
Godioli, A. (eds) E(n)stranged: Rethinking Defamiliarizaon in Literature and Visual Culture. Palgrave
Macmillan, Cham. pp. 127–148. hps://doi.org/10.1007/978-3-031-60859-9_6
Godioli, A and Young, J 2023 Humor and Free Speech: A Comparave Analysis of Global Case Law.
Columbia Global Freedom of Expression, Special Collecon. hps://doi.org/10.5281/zenodo.8105760
Jacques, S 2019 The Parody Excepon in Copyright Law (First). Oxford University Press.
Jongsma, D 2017 Parody Aer Deckmyn: A Comparave Overview of the Approach to Parody Under
Copyright Law in Belgium, France, Germany and the Netherlands. Internaonal Review of Intellectual
Property and Compeon Law, 48(6): 652–682. hps://doi.org/10.1007/s40319-017-0619-5
Korthals Altes, L 2014 Ethos and Narrave Interpretaon: The Negoaon of Values in Ficon (Ser.
Froners of narrave). University of Nebraska Press.
Lai, A T-Y 2019 The Right to Parody: Comparave Analysis of Copyright and Free Speech. Cambridge
University Press. hps://doi.org/10.1017/9781108688949
Laugh it O Promoons v. South African Breweries (2005) Constuonal Court of South Africa Case
CCT42/04
Mercis c.s. v Punt.nl 2009 Amsterdam District Court, Case 444877 – KG ZA 09-2617
Mercis c.s. v Punt.nl 2011 Amsterdam Court of Appeals, Case 200.054.943/01
Prez, R 2022 The Souls of White Jokes: How Racist Humor Fuels White Supremacy. Stanford University
Ramalho, A 2009 Parody in Trademarks and Copyright: Has Humour Gone Too Far? Cambridge
Student Law Review: 58–74.
Tsakona, V 2020 Recontextualizing Humor: Rethinking the Analysis and Teaching of Humor. De Gruyter
Mouton. hps://doi.org/10.1515/9781501511929