In the Netherlands, The Hague Court of Appeal has rendered an interesting judgment concerning the copyrights in Tintin. Moulinsart SA is the Belgian company responsible for the management of the copyrights of cartoonist Hergé, the creator of Tintin.
Moulinsart concludes agreements with many parties granting (or not) the right to use Tintin and setting out the conditions attached to using copyright-protected Tintin material. It concluded such a contract with a Dutch Tintin fan club. The agreement stated that the fan club could only use short parts of Tintin cartoon albums. According to Moulinsart, the fan club breached the agreement by publishing in its own Tintin magazine larger parts of the Tintin cartoon albums.
Moulinsart claimed indemnities of EUR 35,000 for this alleged copyright infringement. This was contested by the Dutch fan club as it stated that it was not at all clear that Moulinsart actually owned the copyrights in the Tintin cartoon albums.
It came as somewhat of a surprise – as former case law had often favoured Moulinsart – that The Hague Court of Appeal decided that indeed it was not sufficiently proven that Moulinsart was the copyright holder of the Tintin cartoon albums. A major and important argument was that – as is the case for all cartoons – a publisher is named on the cartoon album. Tintin cartoons were always published by Casterman, and that name always appears on the albums themselves.
According to Belgian law and general practice, a publisher normally obtains the transfer of copyrights in order to be able to fully exploit the published works and realise a return on its investment. Generally speaking, a publisher will not take the risk of publishing without having obtained the copyrights in the work to be published.
This decision could set an interesting precedent. If indeed the publisher Casterman is the copyright holder of the Tintin cartoon albums, Moulinsart is not entitled to grant licences for these albums or claim indemnities. Moreover, if indemnities have previously been paid to Moulinsart, it could be argued that these must be reimbursed if Moulinsart is not the copyright holder.
