De Kapotte Kachels created a carnival song with a nod to a global hit: Dikke Pens (Clap Your Pens). Its melody strongly recalled ABBA’s Take A Chance On Me. The parody was released on Spotify, but Universal had it taken down on ABBA’s behalf. The central issue: De Kapotte Kachels relied on the parody exception, but the court found commercial exploitation of this recording went a step too far.
What was the legal issue?
The case, ECLI:NL:RBMNE:2026:4647, concerns Article 18b of the Dutch Copyright Act: the parody exception.
That provision allows a copyright-protected work to be used for caricature, parody or pastiche, provided the use accords with what is reasonably acceptable under the rules of social custom. In the European context, the exception must be interpreted in light of the Court of Justice’s well-known Deckmyn judgment.
Put simply, a parody must do two things: evoke an existing work while being sufficiently different from it, and express humour or mockery. That is not the end of the assessment. Even where something qualifies in principle as parody, interests must still be balanced: how far does the creator’s freedom of expression extend, and when do the copyright holder’s interests prevail?
That balance was central here. The parties did not seriously dispute that Dikke Pens evoked ABBA’s work and had a humorous carnival character. The principal question was whether De Kapotte Kachels could also commercially exploit the recording.
The parody exception is not unrestricted permission
The court emphasised that the parody exception provides room for humour, mockery and artistic expression. This matters particularly at carnival, where exaggeration, reversal and adaptations of existing cultural expressions play a major role.
But that room is not unlimited. The court considered, among other things:
• how much of the original work was used;
• how recognisable the original work remained;
• the original work’s function in the new expression;
• how the new work was distributed and exploited;
• and the rights holder’s interest in opposing that exploitation.
In this case, the balance favoured Universal/ABBA.
Why did ABBA’s interests prevail?
The court attached particular importance to the recognisable melody of Take A Chance On Me being audible throughout the carnival song. This was not a brief reference, an isolated nod or a fragment used merely as a starting point. The court considered the melody an essential part of Dikke Pens.
Moreover, Take A Chance On Me is extremely well known. Its melody is immediately recognisable, enabling the carnival song to reach a wide audience. De Kapotte Kachels also had a commercial interest in Spotify exploitation: not only streaming revenue, but also discoverability, recognition and possible performance bookings.
Distribution through streaming services was also neither temporary nor occasional. A carnival song on Spotify is generally available worldwide for an indefinite period. The court considered that this created a lasting association between ABBA’s work and an expression with very different content and meaning.
That mattered because Universal also relied on ABBA’s interest in avoiding an unwanted connection with a subject it did not wish to be associated with. Take A Chance On Me concerns love; Dikke Pens concerns obesity. The court made clear that the new lyrics need not be discriminatory or impermissible. Even without that, a rights holder may have an interest in preventing a lasting connection between its work and an expression with a different message.
Live performances remain permitted
An important qualification is that the court did not wholly restrict De Kapotte Kachels’ freedom of expression and artistic freedom. The song may still be performed live, including at carnival. Television performances are also permitted, as is posting video recordings of those live or television performances online.
The restriction therefore does not cover every use, but specifically commercial exploitation of the recording of Dikke Pens, for example through Spotify, radio or physical releases.
That distinction matters. In effect, the court allowed room for the carnival expression, but did not permit the recording to be exploited worldwide without limit as a standalone commercial product when ABBA’s recognisable melody played such a central role.
No general prohibition on musical parody
De Kapotte Kachels also argued that rejecting reliance on the parody exception could have a chilling effect: carnival music creators might become more reluctant to parody well-known songs.
The court rejected that argument. Its decision concerned only the particular circumstances of the case. It did not mean parodies of famous songs are generally prohibited. Nor did the existence of other carnival parodies establish much: rights holders may be unaware of them, choose not to act, find litigation too expensive or expressly permit the use.
The message is therefore not that parody is forbidden. Whether copyright law permits a parody depends heavily on the circumstances of the particular case.
The outcome: no commercial exploitation
De Kapotte Kachels’ claims were dismissed. The court held that, in this case, the parody exception did not justify commercial exploitation of the recording of Dikke Pens.
Why does this judgment matter?
This judgment matters to anyone working with parodies, remixes, topical creative responses, carnival songs or other adaptations of existing works.
In practical terms:
• A parody may evoke an existing work, but not every use is automatically permitted.
• The more recognisable and central the original work remains in the new expression, the greater the risk.
• Commercial exploitation carries significant weight, especially where streaming services make the work available worldwide without limitation.
• A live performance or temporary context may receive a different legal assessment from a recording remaining online as a standalone product.
• Reputational interests and unwanted associations may also affect the balance.
The judgment draws a nuanced boundary. Carnival, humour and parody receive room, but do not give unrestricted permission to commercially exploit a world-famous melody. Creators must consider not only whether their work is intended to be humorous or parodic, but also how recognisable the original remains and how the new version is distributed and monetised.
For rights holders, the judgment confirms that they may also oppose parody where their work retains a central role in a commercially exploited adaptation. The parody exception remains an important freedom, but ultimately one requiring balance.
