A Mermaid Has No Tears ' Danish Court Rules Zombie Cartoon And Face-Masked Photo Infringe Copyright In The Little Mermaid Statue

• Published date: 18 February 2022
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Aird & Berlis LLP
• Author: Mr Lawrence Veregin

Denmark's 'stre Landsret court sided with the estate of Edvard Eriksen, the creator of The Little Mermaid statue in Copenhagen's harbour, in a copyright infringement claim against the Berlingske newspaper over its zombified cartoon and face-masked photograph of the statue.¹ As artistic works, statues are subject to copyright, granting the copyright owner the exclusive right to make copies of the statue. This includes both the right to make replica statues and depict the statue in other media, such as photographs, drawings or videos. Although Eriksen's The Little Mermaid statue was created over 100 years ago and is based on a public domain fairy tale, it is still subject to copyright in Denmark. The Berlingkse newspaper unsuccessfully sought to rely on a fair dealing defence, claiming its defaced cartoon and photograph of The Little Mermaid statue were parodies.

The Little Mermaid statue and infringement claim highlight some of the unusual copyright implications of derivative works, publicly displayed art and international variations in law.

The Little Mermaid Gets Her Legs

Hans Christian Andersen taught us that mermaids live for 300 years, after which point they dissolve into foam. Humans, on the other hand, only live for a few decades, but have an immortal soul that may live forever. The Little Mermaid made a deal with the sea witch, paying her voice in exchange for legs and a human form. If she could make the prince fall in love with her, she would live happily ever after as a human with the prospect of eternal life through an immortal soul.

As a copyrighted work inspires further works, those new works can continue to have copyright even once the copyright in the original work has expired. Most countries around the world, including Canada, grant copyright based on the life of the author plus additional years after death (usually 50 or 70 years). Although this is a seemingly long period of time, the years inevitably pass, and the copyright, like a mermaid, dissolves into foam and the work joins the sea of public domain. However, if a work is further developed, resulting in the creation of a new work, that new work will get its own copyright term. In this sense, a copyrighted work can have an immortal soul: while the original work's copyright expires, copyright can live on in new derivative works.

Andersen's The Little Mermaid was published in 1837. In 1909, Danish composer Fini Henriques composed a ballet based on the fairy tale, also entitled The Little...