Copyright exceptions – fifty shades of parody

Posted: 06/10/2015

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Background

On 1 October 2014 the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 came into effect in the United Kingdom, modifying the UK’s Copyright, Designs and Patent Act 1988 to introduce new exceptions to copyright infringement in the UK.

Copyright by its nature confers the exclusive right upon a copyright owner (an “author” for the purposes of this article, although the term will include assignees) to authorise the copying of the relevant copyright work, or other acts in relation to the work such as performance, broadcasting and issuing to the public. Any party who commits these acts without permission is infringing, entitling the author to take legal action. Copyright works may include (among other things) literary works, musical works, artistic works and films.

Copyright law is fairly well-harmonised internationally, principally under the Berne Convention and the WIPO Copyright Treaty. An overarching principle of the Convention is that signatory countries (including the UK) may make allowance in their national laws for unauthorised reproduction and introduce exceptions to infringement where such reproduction “does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author”[1]. This allows countries to self-determine for reasons of policy when unauthorised reproduction should be permitted.

Historically UK law has allowed exceptions to infringement in several categories (such as review and criticism[2], or private study). However it has not made any exception for parody - the essential question for the courts when presented with an instance of parody has always been “does it or does it not reproduce a substantial part of the original work and thereby infringe”. The parodic nature or quality of the derivative work has been treated as irrelevant to this assessment.

The new Regulations, together with others introduced at the same time, have introduced a grab-bag of new exceptions. While each of these is of interest to authors, this article considers only the new exception for “parody, caricature and pastiche”.

What are parody, caricature and pastiche?

The Regulations introduce a new Section 30A to the Act, which provides that “fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work”.

The Regulations do not offer any definition for “parody, caricature and pastiche”. This means that the words must be given a “plain-English” interpretation – ie they mean what they say. For the purposes of this note, we will not make any distinction between the three terms but merely note the common element shared by them – which is in each case an element of iteration and transformation (of a work in the case of parody, of a character in the case of caricature and of a style in the case of pastiche) which relies for its effect on the audience’s familiarity with the original source material.[3]

However, even if we can establish with reasonable certainty a dictionary-definition for “parody, caricature and pastiche”, there will inevitably be room for argument as to whether a particular infringing act comes within the definition and the limits of the definition will necessarily need to be established by the UK courts on a case-by-case basis. So, what approaches might we anticipate the court will take? It may be useful to look to two recent cases in other jurisdictions.

The South Park case[4]

South Park is a long-running American animated series with a tradition of lampooning social, cultural and political issues in filthily, cheerfully sophomoric terms. In a 2008 episode addressing the phenomenon of viral videos, one character, Leopold “Butters” Stotch, re-enacts a previously-popular music video “What What (In the Butt)”. The recreation, which is largely framed in the same manner as the original and features the same backdrop and eccentric dance moves, derives its shock value from the fact that Butters is an optimistic seven-year-old naïf (who is typically victimised by the show’s plot-lines) with little understanding of the song’s adult subject matter.

Brownmark Films LLC, owner of the copyright in the original video, brought a claim of copyright infringement against South Park Digital Studios and others, which SPDS sought to defend by claiming a defence of fair use for the purposes of parody. The US approach of “fair use” is wider than the UK equivalent of fair dealing. In the US, criteria are prescribed for “fair use”, but those criteria can be applied to almost any category of use. The UK approach is instead to prescribe specific categories of excepted use and then ask whether or not use within those categories is “fair dealing”.

The court determined that the use of the original work was fair (in particular because it added “transformative value” to the parts of the original work which had been re-used, and because the parody was not a substitute for the original).  However, this was found to be the case even though the parodic target was not the original video alone but the phenomenon of viral videos in general, with the judge commenting that “the South Park episode is clearly a parody of the original WWITB video, providing commentary on the ridiculousness of the original video and the viral nature of certain YouTube videos.” 

This may be seen as a departure from traditional American approaches to parody, where the defence has previously been denied if the subject of the parody is not the work which has been copied. While the US courts have yet to go as far as the ECJ in the Deckmyn case discussed below and allow works to be used to parody entirely different subject matter, it is apparent that a determination of parodic “fair use” can take into account not only the extent to which the original work is targeted but also wider social commentary.

The Deckmyn case

The ECJ’s recent (September 2014) preliminary ruling in the Deckmyn case[5] provides some assistance in quantifying the limits of “caricature, parody and pastiche” in Europe and therefore the UK. The ruling, which had been requested by the Belgian court, related to a calendar handed out by a Belgian politician which on its cover featured an image based on the cover of a well-known Belgian comic book of 1961. The original work depicted one of the comic’s main characters in a white tunic, hovering above a market town and throwing coins to the inhabitants, who excitedly snatch them from the air as they rain down. The new work replaced the character with a depiction of the Mayor of Ghent and replaced the recipients of the coins with brown-skinned people, some of whom wear veils.

Proceedings for copyright infringement were brought by the several heirs of the original cartoonist, a Mr Vandersteen, and Deckmyn sought to rely on the parody defence, claiming that the drawing at issue was a political cartoon which fell within the scope of “parody” envisaged by the Directive. The Vandersteen heirs argued firstly that a “parody” must meet certain criteria which were not met in this instance and secondly that the image conveyed a discriminatory message which should not be protected.

The ECJ’s preliminary ruling determined the following:

• The concept of “parody” introduced in the Directive is an autonomous concept of EU law, which must be interpreted uniformly throughout the European Union – meaning that individual member states should not be free to determine the limits of “parody” on an individual basis.
• “Parody” should be given its everyday meaning and not further qualified. The essential characteristics of a parody are that it should “evoke an existing work while being noticeably different from it” and that it should “constitute an expression of humour or mockery”. However, no additional qualifications to the definition are necessary – and in particular the ECJ rejected any suggestion that a work of “parody” should necessarily have the original work as its target (an even broader approach than that adopted by the South Park decision).
• However, the application of the exception for parody must strike a fair balance between the interests of the author of the original work and the interests (and in particular the freedom of expression) of a user of the work for parodic purposes. While ultimately it would be for the Belgian national court to decide whose rights trump whose, the ECJ suggested that the original author (or in this case his heirs) had a legitimate interest in not having his work associated with a discriminatory message. As set out above, the Berne Convention provides that the “legitimate interests” of authors must not unreasonably be prejudiced by a reproduction which would otherwise be permitted under a national exception to infringement.

Where does this leave parody in the UK?

The Deckmyn decision leads to the result that an author’s work may be co-opted for the purposes of parodying completely unrelated works. However, there are definite limits to the principle. Firstly, that the reproduction must not prejudice the author’s legitimate interests. Secondly, the new exceptions are only applicable when the relevant use of the copyright work is “fair dealing” (ie for the exception to be available the use must both be parodic and fair). This means that the well-established body of UK case law on fair dealing will assist in determining whether or not a particular use is permissible. Case law will be especially helpful where it relates to the analogous exception of fair dealing for the purposes of criticism or review.

“Fair dealing” is assessed globally but factors which may be of relevance include:

• the proportion of the original work as a whole which has been re-used in the parody;
• the necessity of the relevant use (ie whether it was necessary to use so much of the original work, or to reproduce the original work at all, to achieve the parodic effect);
• whether the parody may be used in substitution for the original work (and in particular whether it could impact on sales);
• the nature and intent of the parody (so a parody which “pokes gentle fun” at an author could be more likely to be regarded as fair than a parody which is more vicious); and
• whether the parody will be harmful to the reputation of the original work or the author (as in Deckmyn).

As with any circumstance where an unauthorised party makes use of a copyright work and seeks to rely on any of the “fair dealing” defences under UK law, whether or not the defence is available will depend on the facts of the case. In addition, we can expect considerable judicial consideration to be given to whether or not a given use is sufficiently “parodic”. The concept of parody requires an element of humour, and humour is a famously subjective concept. There is a risk that personal aesthetic considerations may creep into judicial analyses, such that whether or not a particular use is held to be a parody may depend on whether or not a judge is able to discern the intended humour. It is also possible that defendants may be able to rely on the blurred boundaries of humour and seek to label non-parodic uses as “parody”.

From an author’s perspective it may be difficult to accept that one’s work can be not only parodied, but used as a tool of parody. However, it is possible that such a use will benefit the original work. The effectiveness of parody relies on the original work being sufficiently well-known to form part of the relevant cultural vocabulary. In broad terms, by parodying a work the parodist is necessarily reinforcing the original work’s status as being significant enough to be worth parodying, which may itself be seen as a form of endorsement. In some instances, the existence of the parody may even encourage sales of the original work. In the South Park case, it was noted that after the broadcast of the episode featuring Butters’ re-creation, web traffic to the original viral video’s YouTube page spiked massively.

From the perspective of creators, the new parody exceptions will of course be welcome. The exceptions lend (some) certainty to an area of UK law which was previously murky enough to inhibit commercial activity. A recent example of the potentially stifling effect of the UK’s historic treatment of parody is the delayed release in the UK of 50 Shades! The Musical,[6] a parody of E L James’ best-selling work of consumerist smut. Having enjoyed off-Broadway success since early 2013, the UK production of the musical at the Edinburgh Fringe had reportedly been withheld until after 1 June 2014 (when the Regulations were originally due to come into force).[7]

However, some creators may feel that the exception does not go far enough - for example in relation to “mash-ups”. The availability of copyright works in easily editable formats over the Internet has given rise to a prominent culture combining existing musical works or films and sharing the results. In some ways this is nothing new – popular musicians have been openly sampling and remixing each other’s work (and occasionally adding to the volume of copyright case law) since the early days of hip-hop in the 1970s. However, the latter-day culture is distinguished by an interest in “viral” circulation rather than commercial exploitation (or indeed aesthetic quality) and often by a wilful silliness. It remains to be seen whether the traditional concept of “parody” will include viral works whose humorous intent is not derived from any comment on the original work, or indeed any wider comment, but from an ironic obtuseness, surreality or idiocy.[8]

Other routes to protection

Dependent upon the circumstances, other actions may be available to an author whose work is being re-used by a parodist.

The UK, like most jurisdictions, recognises a category of “moral rights” belonging to the author of a copyright work (in this context of moral rights referring to the originator of the work rather than necessarily the owner of the copyright). These primarily include the right of paternity (ie the right to be identified as the author of a work) and the right to prevent derogatory treatment of the work. We will not discuss the right of paternity as it is not infringed unless the author has asserted it in the manner prescribed by statute (which will not always be the case).

Under English law, the scope of “derogatory treatment” is currently uncertain. Until recently, the historic body of case law indicated that “derogatory treatment” requires both the distortion or mutilation of the original work and that the treatment of the work is prejudicial to the honour or reputation of the author. On this basis, an author could potentially rely on its moral rights only if the parody had that prejudicial effect. However, the 2012 House of Harlot case[9] determined that mere distortion (in this case the removal of a forest background from a photo) was sufficient to cause derogatory treatment.

Two difficulties present themselves. Firstly, the House of Harlot case departs from precedent without express reason. On that basis, it may be regarded as unreliable. It is therefore uncertain whether any parody can be deemed to be an infringement of moral rights if it constitutes a “distortion” alone. If so, this would significantly undermine the new exception of parodic use from copyright infringement as parody may almost by definition distort the original work. Even if both distortion and prejudice are required, the exception for parodic use is still potentially undermined, as a parody may be held to infringe moral rights if it is sufficiently detrimental to the author’s honour or reputation. Again, this raises the spectre of aesthetic subjectivity, such that “gentle” parody may be permissible where a more acerbic approach is not – however deserving the target.

The second difficulty is that the Regulations make no provision in relation to the interaction between the new exceptions to copyright infringement and the continued application of moral rights, which is a missed opportunity to resolve the tensions between the two. At present, then, the position appears to be that an author may rely on an infringement of its moral rights to address parodic use – but should tread carefully in doing so.

An author may also be able to seek remedies under trade mark law and for passing off if the parodic work either reproduces the author’s registered or unregistered trade marks or otherwise implies some form of association between the author and the creator of the parodic work. Again, the availability of this cause of action will depend upon the facts.

Conclusion

The utility of the new exception for parody is uncertain – there are significant unresolved questions about the scope of “parody, caricature and pastiche” and, as always, a measure of uncertainty around the assessment of “fair dealing” which will depend on the facts. It is also possible that the benefit to users of the exception is significantly undermined by the continued, unaltered application of moral rights doctrines which prevent derogatory treatment of an author’s work. As is often the case with new legislation, we will need to look to future case law to clarify where lines will be drawn.

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