The court cases continue
Update - May 4, 2021
The Hergé Foundation, known in French as Moulinsart, and formerly known as Studios Hergé, is the organization that officially manages the world of Hergé and his creation, The Adventures of Tintin. It was created by Fanny Rodwell, Hergé’s second wife and widow, and has been managed by her second husband, Nick Rodwell. Moulinsart and Mr. Rodwell are ferocious about controlling every aspect of Tintin, particularly the copyright.
It is worth noting that the issues around Tintin and copyright, and Moulinsart, has become ever more complicated. Moulinsart suffered a legal set-back two years before I wrote this post about the legal repercussions of Tintin fan art and fan fiction.
Moulinsart loses case in Hague Court of Appeal
The backstory to this, is that in 2014 Mr. Rodwell sued a group of Tintin fans in the Netherlands, called De Hergé Genoodschap, who ran a few Tintin strips in their internal newsletter, for copyright infringement, since they had reproduced the strips in a manner not compliant with their agreement with Moulinsart. Moulinsart claimed indemnities of EUR 35,000 for this alleged copyright infringement.
But in May 2015, the court ruling of June 2014, which had been in favour of the Genoodschap, was confirmed in the Hague Court of Appeal. The key to this successful appeal was a document presented by the defence, which was an extract from Herge’s 1942 contract with his publisher, Casterman, in which he relinquished the rights to reproduce his work to Casterman.
According to legal resource Lexology, “…it was not at all clear that Moulinsart actually owned the copyrights in the Tintin cartoon albums.
Thus, the court ruled that the copyright to Tintin books belongs to Casterman. Moulinsart SA objected to the ruling in a statement on the tintin.com official website, on the basis of the definition of copyright: “Moulinsart SA and Editions Casterman were astounded to learn of the decision made by the Court of Appeal at The Hague (Holland) on 26 May 2015. […] The Court appears to have fallen into confusion over the “Tintin” rights held respectively by Moulinsart SA and by Editions Casterman. Moulinsart SA will be following every possible avenue of appeal offered by Dutch law.”
This event had two significant outcomes: 1) it created a possible precedent for people who had lost cases for infringement of Tintin copyright to countersue Moulinsart for damages, and it changed the official narrative about Tintin that had been promulgated, and insisted on, by Mr. Rodwell and Moulinsart. That narrative is that Tintin is art, valuable national Belgian art, and not a comic book, and not for children, and worth lots of money, and therefore worth suing for. Just imagine what the film rights to Tintin are worth.
Casterman family sells valuable Tintin art
Recently Mr. Rodwell’s rights to Tintin was challenged yet again. On January 14, 2021, the artwork for a rejected cover of the Tintin adventure, The Blue Lotus, owned by the Casterman family, sold for €3.2m ($3.8m), with buyer’s premium, at auction. That set a world record for a comic book work of art (est. €2.2m-€2.8m).
As was to be expected, Nick Rodwell was not happy about the sale. Mr. Rodwell is quoted as having said to the French newspaper Le Monde in 2020:
But Eric Leroy, a comic book specialist at the auction house Artcurial, confirmed that the ownership of the work cannot be questioned, and that the sellers, as heirs of Jean-Paul Casterman, was indeed the legal owners of the work prior to its sale.
And so the disputes and lawsuits about Tintin and copyright of the books continue. Again, it reinforces what I have been saying in this series of posts: If you are about to dabble in fan fiction, first consult a lawyer, because the area is rife with legal pitfalls.
Risky fan art – Tintin and Alph Art
On the subject of fan fiction versus copyright rules, I am discussing examples of three cases of what seems to be copyright infringement of famous books, starting with the case of the two “Alephs” – Jorge Luis Borges vs. Pablo Katchadjian. Now it is the turn of Tintin and Alph-Art, a Tintin comic book which was incomplete at the time of author and artist Hergé’s death, and which was completed and recreated by Canadian Yves Rodier in an impressive feat of fan fiction.
Recap of definition of fan fiction
Fan fiction is fiction about characters or settings from an original work of fiction, created by fans of that work rather than by its creator, in this case, Hergé’s Tintin. Fan fiction is rarely commissioned or authorized by the original work’s creator or publisher, and is rarely professionally published (just like Rodier’s work that I discuss here). It may or may not infringe on the original author’s copyright, depending on the jurisdiction and on such questions as whether or not it qualifies as “fair use”.
“Fair use” of copyrighted materials
This is a good definition of “fair use”:
“In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.”Rich Stim, Attorney at Law, in Copyright & Fair Use, Stanford University Libraries, rtrvd. 2016-01-13
Rich Stim, quoted above, continues with this definition by stating that the term “transformative” is not clearly defined, that there are no hard and fast rules for its application, and that many law suits have arisen because of this. If in doubt, consult a lawyer.
Examples of fair use in United States and Canadian copyright law include commentary, search engines, criticism, parody, news reporting, research, and scholarship. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include these four basic questions:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
Legal ramifications of fan fiction
Legal issues with fan fiction arise due to the prospect that a piece of fan fiction may constitute a derivative work, most prominently (but not exclusively) under United States and Canadian copyright law. In copyright law, a derivative work is an expressive creation that includes major copyright-protected elements of an original, previously created first work (the underlying work). The derivative work becomes a second, separate work, independent in form from the first. The transformation, modification or adaptation of the work must be substantial and bear its author’s personality to be original and thus protected by copyright. Translations, cinematic adaptations and musical arrangements are common types of derivative works. Because it is a separate, independent work, it qualifies as an original creation, and most countries’ legal systems seek to protect both original and derivative works.
Attitudes of authors and copyright owners of original works to fan fiction have ranged from indifference to encouragement to rejection. Copyright owners have occasionally responded with legal action – but not in Rodier’s case, as far as I could find out. The two largest fan fiction websites are FanFiction.net and Archive of Our Own, which demonstrate that a large percentage of the efforts are ‘crossovers’ where one or more book-based universes or characters are conflated, an even larger proportion of the write-ups are very short (at less than 1000 words), and a significant number of the larger works are incomplete. Lastly, readership for many genres is very low. In other words, these works meet the criteria, above, for “fair use”.
Tintin and Alph-Art
It is well-known that copyright on Hergé’s famous Tintin picture books will only expire in 2053. In the meantime, the brand, Hergé’s drawing style called “ligne claire”, the characters, plots, features, etc., are jealously and ferociously guarded by Moulinsart. Moulinsart has taken legal steps to stop publication of some of the unofficial material, including parodies, pastiches, tributes, and attempts and producing further comic books or completing the last, incomplete Tintin book by Hergé, Tintin and Alph-Art.
Tintin fans simply cannot get enough of the few books, films, film books, theatre productions, branded products, and animations that had been approved by Hergé and Moulinsart and, like anything you cannot get, new Tintin books have become more and more desirable and valued over the years. People have gone to desperate lengths. One person, “Mr. Obscure”, actually made an audio-book version of Flight 714, the 22nd book in the Tintin series – unauthorized of course. (It is quite well done, though “Captain Haddock” sounds Irish, not Scottish.)
One fan in particular, Canadian artist Yves Rodier (born June 5, 1967), a Franco-Québécois comic strip creator, has become very good at recreating the Tintin style and has produced the only full-length (72-page) complete version of Tintin and the Alph-Art. Rodier always had a passion for The Adventures of Tintin by Hergé and so he embarked on writing some Tintin stories of his own. Rodier specializes in Tintin pastiches, meaning that he imitates the style of Hergé, but these are illegal, as they breach the Tintin copyright owned by the Hergé Foundation (Moulinsart). However, they are all to be found circulating on the Internet.
“The twenty-fourth and final title in the Tintin series is an unfinished symphony. Three pencilled page [sic], forty-two further pages roughly sketched, a few pages of storyline, and other scribbles and notes, make up Hergé’s ultimate story. There is clearly enough material for a very promising adventure, although the work is somewhat fragmented.”Tintin and Alph-Art on the official Tintin website.
The English version of the incomplete work was published by Egmont/Sundancer in 1990.
Review of Rodier’s Tintin and Alph-Art
Rodier had quite lot of “filling in” to do to make Hergé’s draft resemble a completely developed Tintin book. His version of Tintin and Alph-Art is the only complete Tintin comic book drawn in the method of Hergé, in existence, with the correct number of frames per page. Many artists have created pastiche front covers and internal pages of Tintin books, or written short Tintin-based stories, but only this one is complete. Rodier completed Tintin and Alph-Art in black-and-white and several groups have coloured it, such as “Alph-junis”, and Richard Wainman translated it into English.
Rodier published it in Autumn 1986 and then presented it to Moulinsart. Rodier asked that it become an official book but Moulinsart refused. In 1991, Rodier met Bob de Moor, who had collaborated with Hergé on several volumes of The Adventures of Tintin, and together they asked for permission to re-draw the book. Moulinsart still disagreed and De Moor died in 1992. Rodier later re-drew certain parts of the book to make them more akin to the style of Hergé. The rare, colour edition (of which you can see a few pages, below) was released on CD-ROM, as opposed to being printed like the original edition – and if you search the internet, you can find a pdf colour version.
“The twenty-fourth adventure of Tintin, ‘Tintin and the Alph-Art’, was left unfinished at the time of Herge’s death on the 3rd of March, 1983. Since then, several artists have tried their hand at finishing this ultimate adventure of Tintin. Presented here is the version drawn by Yves Rodier, a Canadian artist, in an English translation by Richard Wainman. The intention, when creating the translation, was to remain as faithful to the original as possible, and therefore, new place names and character names have not been anglicized. This practice, which was carried out by the English translators, Leslie Lonsdale-Cooper and Michael Turner for the books in the established canon, has not been used here.”Comment by author and illustrator Yves Rodier on the back cover of Tintin and Alph-Art
Rodier called this book “A Tribute to Hergé”. He has managed to get the essence of Hergé’s thinking and style into every carefully-crafted frame, from the shape of the speech bubbles and the font used, to the typical poses and looks of the characters and settings. His treatments of objects are very similar to Hergé’s, though he is perhaps a teeny little bit clumsier than Hergé when it comes to drawing women and the fine details of hands and fingers. Each frame is so packed with details they are a delight to study, though that also makes one long for Hergé’s careful use of white space.
The plot about art fraud, which Hergé outlined, features ideas from the original books, for instance, a mystery which starts at Tintin and Haddock’s home, Marlinspike Hall, but then plays out in some exotic overseas location. Another example is the goop that almost turns Tintin into a piece of abstract art – it looks just like the soapy goop that “Professor Calculus” invented to make copies of any piece of art in Tintin and the Lake of Sharks, the photo book of the 1972 film. The evil assassin working for the mastermind “Endaddine Akass” in this novel looks almost the same as “Dr. Krollspell”, the evil henchman in Flight 714 (1968). In fact, there are so many references to previous books that it seems like an enormous in-joke. You can spend a lot of time playing “spot-the-cross-reference”.
The main villain is Tintin’s old nemesis, the big-nosed former millionaire, “Roberto Rastapopoulos”, back from the dead in Flight 714. All the other frequent characters are there, true to form, from “Captain Haddock” and “Bianca Castafiore” to “Jolyon Wagg”. Careful readers would have noticed that the name of the photographer who featured in many stories, for instance The Castafiore Emerald (1963), “Christopher Willoughby-Drupe”, was misspelled as Willoughly-Drupe on p.60. New characters, who could both have done with a bit more refinement, are the Jamaican avant-garde artist “Ramó Nash” who sometimes looks like his entire face is just two thick black lips, and gallery assistant “Martine Vandezande” with her 1960s-style eyeglasses and changing hair colour who says “alas” a lot and – horrors! – wants to date Tintin and take him to meet her parents. That would be highly unlikely in the Tintin Universe.
While the book is largely a “fattening” of the original, produced under many constraints, I still think it is an extraordinary achievement. Fans from all over the world have taken it apart in critiques that vary from loving it to hating it. The love I can understand; it was a real treat to see the old characters I love in a new, modern setting. The hate I can understand too: hell hath no wrath like a disappointed fan who just wants Hergé to come back from the dead and do more books.
Next article in the series Fan Fiction versus Copyright: The Case of The Little Prince – De Saint-Exupéry versus Roemmers (article 4 of 4)