Aron Flam, a Swedish stand-up comedian, published last year a book on Sweden’s role during WWII. The cover page of his book shows a tiger. In a sudden raid during the coronavirus crisis, copies of his book were seized by the police for allegedly violating Swedish copyright legislation.
During WWII, a book illustrator, Bertil Almqvist, created an iconic image for a “vigilance campaign” launched by the State Information Board during the war on behalf of the Armed Forces in the country. It showed a tiger in the blue-yellow colours of the Swedish flag, with the text “A Swedish Tiger”. In Swedish, it is a play with words, referring to the cat animal but also meaning “A Swede keeps quiet”.
The image was supposed to convey a double message. The campaign called on the citizens to remain silent and not disclose anything that could damage Sweden’s neutrality policy during the war and its relations with Nazi Germany and the allied powers. At the same time, Sweden was depicted as strong and dangerous as a tiger.
The Swedish government payed Almqvist for the image. During the war years, the image was disseminated everywhere in society, in trains, restaurants and enterprises. After the war, his heirs claimed that the image belonged to their father and sued the Swedish Armed Forces for having registered the image as its trademark.
After a lengthy judicial process, which was resolved in 2008, the courts decided that Almqvist had copyright to the image and his heirs were granted compensation for its use.
In the meantime, the Military Readiness Museum, a private museum located in southern Sweden in an underground military structure from World War II, had acquired the copyright to the image from the heirs. Almqvist passed away in 1972 and the copyright is valid for 70 years until 2042. The museum wants to preserve the history of the image and convey it to coming generations.
Comes Aron Flam and writes a book where he questions the neutrality policy and accuses Sweden of continuing being silent and in a state of denial of its collaboration with Nazi Germany. He makes his point by illustrating the book with a parody of the “Swedish tiger”, showing it with a swastika on one paw and the other paw raised in a Nazi salute.
The museum did not take it lightly and sued Flam for allegedly violating its copyright to the image and requested him to delete the image from the cover page or destroy the book. At the request of a prosecutor, the policed seized remaining copies. A trial at the local court in Stockholm is scheduled for 24 September.
“A Swedish tiger belongs to our history, to the years of military readiness,” a representative of the museum said in Swedish media. “It’s a crisis now though not war and you must not change the image.”
She was contradicted by the chairman of the Swedish Publicist Club, an NGO which defends media freedom and freedom of expression. “It must be allowed to make fun of the state. It would be highly dangerous if the government would regulate what you can joke about or not.”
Copyright legislation and the exception
In fact, Sweden has a copyright law dating from 1960 which will settle the issue. It does not include an explicit exception from copyright protection for images that have been changed for the purpose of caricature or parody. However, a spokesperson of the Swedish ministry of justice confirmed to The Brussels Times that this is legal practice and that it is up to the courts to apply the exception.
Furthermore, the EU Infosoc Directive (2001/29) on the harmonisation of copyright legislation in the member states, provides for an exhaustive list of exceptions to the right of reproduction of works protected by copyright. Among these exceptions is the “use for the purpose of caricature, parody or pastiche”, set out in Article 5(3)k of the directive.
The exception was optional and Sweden did not adopt it because it was already applied in existing legislation. Even “defaming a national symbol” like the Swedish flag is not a crime since 1971.
This particular exception is grounded in the freedom of expression, a fundamental right which according to the European Commission has been strengthened in the new Copyright Directive (2019/790) on copyright and related rights in the Digital Single Market. The deadline for transposition of the directive in national law is June 2021.
Freemuse, a human rights organisation which defends the right to freedom of artistic expression, documented in a report in April hundreds of examples where this right was violated or in other ways restricted through national laws. Until now Sweden, a country with the longest history of freedom of expression and the right to access to public information anchored in constitutional law, has largely scored well.
Censorship is the most common violation of artistic freedom. Several countries are censoring and sentencing artists in all kinds of art forms for allegedly insulting heads of state, hurting religious feelings or glorifying terrorism. And now, maybe, for making fun of an image from WWII.
“Comedians should not be sued for making people laugh; they are simply doing their job,” commented Dr Srirak Plipat, Freemuse Executive Director. “Artists and authors need to know that their right to artistic freedom is protected under European and international human rights laws. This includes parody and the reinterpretation of state symbols.”