Parody – the greatest among copyright exceptions

This news on Billy Mitchell’s dispute over his cartooned image has led me to something about which I didn’t have the opportunity to speak recently, namely parody – one of the greatest among exceptions and limitations, not only because of its relation to humour, but rather because of its recent expansion in some European legislation.

I am, of course, making a reference to those notable amendments that the U.K. finally performed in its copyright legislation, on the 1st of October 2014, the day on which the parody exception was introduced in the national legislation.

I don’t know what parody means to you, but for those who understand its relation to freedom of expression and public interest, parody is one essential puzzle piece that should be found in every legislative structure.

The changes in the U.K. law were a serious opportunity to observe the drawing up process in its evolution and I must admit that observing the developments in the code is far more interesting than actually pursuing some particular regulation’s meaning, especially when the legislative changes are fundamental and public (users) orientated.

“Caricature, parody or pastiche
30A—(1) Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.
(2) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.

2A.—(1) Fair dealing with a performance or a recording of a performance for the purposes of caricature, parody or pastiche does not infringe the rights conferred by this Chapter in the performance or recording.
(2) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this paragraph, would not infringe any right conferred by this Chapter, that term is unenforceable.
(3) Expressions used in this paragraph have the same meaning as in section 30A.”.

I wrote these articles one year ago, and if you happened to read them, you remember that I clearly said that, regardless of the parody acceptance within the framework of the UK law, the application of this exception will be a matter for the courts to decide, rather than a normative text’s inference.

I know that thinking that a judge will decide what is funny and what is not seems a bit uneasy, but one must accept that the alternative of having a definition on parody is something that must be definitely avoided.

After the legislative changes entered into force in October 2014, the U.K. government issued some guidance documents seeking to explain the recent laws modifications. This document, for example, addresses the issue of exceptions by making some precise explanations for the new content creators. I found them wrong and misleading especially in the context of the Deckmyn v Vandersteen Case, where the European Court of Justice made it clear that:

“The concept of ‘parody’, within the meaning of that provision, is not subject to the conditions that the parody should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work; that it could reasonably be attributed to a person other than the author of the original work itself; that it should relate to the original work itself or mention the source of the parodied work.”

European Court of Justice also established the essential requirements of parody as being:

– to evoke an existing work;
– to be noticeably different from it;
– to constitute an expression of humour or mockery.

Instead of that, the U.K. Gov.’s guide emphasizes the quantitative factor, the new authors being advised to make use of small fragments of the work in order to meet the law’s requirements.

“The law is changing to allow people to use limited amounts of another’s material without the owner’s permission. For example: a comedian may use a few lines from a film or song for a parody sketch; a cartoonist may reference a well known artwork or illustration for a caricature; an artist may use small fragments from a range of films to compose a larger pastiche artwork.
For example, it would not be considered “fair” to use an entire musical track on a spoof video”

The negative impact of this information is obvious especially since it has long been accepted that music parodies couldn’t be performed in another way than by taking considerable fragments of the original song. This was stated in the Fisher v. Dees case, a dispute governed by a legislation (US) that has a long history in parody regulation.

„the unavailability of viable alternatives is evident in the present case. Like a speech, a song is difficult to parody without exact or near-exact copying. If the would –be parodist varies the music or meter of the original substantially, it simply will not be recognizable to the general audience.

Of course, the restrictions that the U.K. Government tries to impose are covered by the fair dealing umbrella, but no one tells new creators that the fair dealing is also a matter for the courts to decide, that every case has its particularities and that it’s difficult and even dangerous to draft a definition on something inclined to vary.

It is important to understand, however, that this change in the law only permits use for the purposes of caricature, parody, or pastiche to the extent that it is “fair dealing.” Fair dealing allows you only to make use of a limited, moderate amount of someone else’s work. This legal term is further explained later in this guide.

Bottom line, last year’s changes made by the U.K. are definitely a step forward, but that will remain only a text if its interpretation will distance from the established essence of article 5(3)(k) of Directive 2001/29:

“The application of the exception for parody must strike a fair balance between, on the on hand, the interests and rights referred to in Article 2 and 3 of that directive, and, on the other, the freedom of expression of the user of a protected work who is relying on the exception for parody.”

Monica Lupașcu Romanian Lawyer since 2005 with LL.M. in Intellectual Property Law. She currently activates as European Trademark Attorney and internet and technology legal practitioner.

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