The development of parody within
\nintellectual property law has been fragmented and arguably without sufficient
\nphilosophical or jurisprudential considerations. In this essay I will
\nestablish a broad definition of parody within intellectual property law and
\nhighlight the potential areas of difficulty in defining what constitutes
\nparody. To give parody special consideration within intellectual property
\nlaw would involve allowing parodists to infringe on the copyright held by the
\nauthors of authorial works. I will argue
\nthat parody has inherent public policy and economic benefits, as well as
\npromoting freedom of expression which should be fundamentally protected and
\nwill show that these considerations outweigh any possible impact this may have
\non copyright. I will then consider what form these special considerations
\nshould take and will conclude that the creation of a statutory provision to
\ninclude an element of flexibility is the most appropriate protection for
\nparody.<\/p>\n
What is parody?<\/strong><\/p>\n As outlined by Spence, \u2018no stable understanding of the term \u201cparody\u201d Further, I would argue that an The significant overlap between parody Due to the nature of the essay, it Special consideration<\/strong><\/p>\n The aim of copyright in Arguments against parody<\/strong><\/p>\n One of the key arguments posited in in most circumstances, the principle of freedom of This decision goes even further by Posner argues that aside from It is important to note that The European Union has exercised A further criticism of parody Deazley[24]<\/a> Arguments for parody<\/strong><\/p>\n South Africa has justified parody This point was also raised in the I would argue that parodies I will touch briefly on the public policy justifications for the importance of parody in society. The first is the they often comment on society and can add to debate. This should not be undermined; using authorial works to spread the message can be engaging and more effective. Parody can bring about humour and happiness, something which should not be minimised to protect the rights of the individual author. This marries neatly with the utilitarian perspective of intellectual property through the promotion of laughter and joy. <\/p>\n There is an intrinsic value in How should we afford parody special From the arguments above, I believe In the US, the special (1) the purpose and character of the use, (2) the nature of the copyrighted work;<\/em><\/em><\/p>\n (3) the amount and substantiality of the (4) the effect of the use upon the potential This was dealt with in the case of Campbell[31]<\/a>, France has adopted a very flexible I would propose that a parody Conclusion<\/strong><\/strong><\/p>\n To conclude, I believe parody Bibliography<\/strong><\/strong><\/p>\n Primary Sources<\/strong><\/strong><\/p>\n Legislation<\/strong><\/p>\n Secondary Sources<\/strong><\/strong><\/p>\n [1]<\/a> Michael [2]<\/a> Daniel [3]<\/a> Concise [4]<\/a> Case [5]<\/a> Eleonora [6]<\/a> [7]<\/a> Bv <\/em>Case CCT 42\/04 (South African [8]<\/a> Deckmyn [9]<\/a> Christian [10]<\/a> Richard [11]<\/a> 960 [12]<\/a> Deckmyn [13]<\/a> Rutz [14]<\/a> [2001] [15]<\/a> Posner [16]<\/a> R\u00fctz, [17]<\/a> ibid [18]<\/a> Council [19]<\/a> Deckmyn [20]<\/a> Rosati [21]<\/a> [1998] [22]<\/a> Spence [23]<\/a> Clark [24]<\/a> Ronan [25]<\/a> Ashdown
\nexists\u2019<\/em>[1]<\/a>.
\n In absence of statutory provisions defining the nature of parody within
\nintellectual law, some academics, including Jongsma[2]<\/a>,
\nrely on the dictionary definition of parody as \u2018an imitation \u2026 with
\ndeliberate exaggeration for comic effect\u2019[3]<\/a>. Personally, I do not believe this is a
\nsufficiently detailed definition for the complex nature of parody, as it fails
\nto comment on the transformation of the authorial work to a derivative work.
\nIn my view, the most complete definition of parody comes from the
\ncase of Deckmyn v Vandersteen, which states \u2018that the essential
\ncharacteristics of parody are, first, to evoke an existing work while being
\nnoticeably different from it, and, secondly, to constitute an expression of
\nhumour or mockery\u2019.[4]<\/a>
\nThis definition can be criticised, however, for failing to
\nclarify whether humorous intention would be a sufficient expression or whether
\na successful humorous effect is required[5]<\/a>.
\n A humorous \u201ceffect\u201d would make the definition of parody narrow and may
\ncause difficulties when applying the subjective test as it would place too
\ngreat an emphasis on judicial discretion in deciding whether the humorous
\neffect was successful.[6]<\/a><\/p>\n
\nassumption of humorous intent or effect is not necessary in all cases to
\nconstitute a parody, for example, in the case of Laugh it Off Promotions CC
\nv South African Breweries International Finance [7]<\/a>, a
\nparody was found. Arguably, there was little, if any, comic effect intended
\nin the parody, rather the intention was to shock the audience. This case raises a further question about the
\ndistinction between parody and satire, which the definition in Deckmyn fails
\nto distinguish[8]<\/a>.
\n R\u00fctz states that \u2018satire does not
\ndepend on imitation of existing materials; it can imitate society\u2019s views\u2019<\/em>[9]<\/a>
\nand it is this distinction which has led to a restrictive approach to satire by
\nthe Courts. It has been argued that as
\nsatire comments on society\u2019s views, there should be no need to use the
\nauthorial work as a vessel for this[10]<\/a>,
\nas seen in Rogers v Koons[11]<\/a>,
\nwhere it was found that there was no parody as the derivative work did not
\ncomment directly on the authorial work, rather on society as a whole and
\ntherefore it would be classified as satire.<\/p>\n
\nand satire render the current classifications insufficient as they are treated
\nas two separate copyright issues. There
\nare two key types of parody; \u2018target parody\u2019 which criticises the authorial
\nwork, and \u2018weapon parody\u2019 which criticises things outside of the authorial
\nwork; for example, politics or society. Whilst target parody clearly fits
\nthe definition of parody outlined above, weapon parody appears to simultaneously
\nsatisfy both the criteria for parody and for satire. Attempting to separate types of work based on
\nthese criteria is arbitrary and does not reflect the fact that in many cases,
\nthe derivative work will satisfy the test for both parody and satire. As
\nparody cases do not occur in a legal vacuum, it is illogical to attempt to
\ntreat them as such and it is imperative that when deciding on this issue, the
\nwider social context is incorporated. There
\nis little guidance as to which definition of parody will be favoured by the
\nCourts, allowing far too much judicial discretion and uncertainty. <\/p>\n
\nis not possible for me to further investigate the definition of parody and the
\nrole of satire and therefore I will continue with a broad understanding of
\nparody. I will follow the decision in Deckmyn[12]<\/a>
\nthat parody should be understood according to its everyday meaning.<\/p>\n
\nintellectual property is to protect the expression of ideas and free speech.
\n Copyright law gives individuals certain rights over their creations,
\nincluding the right to consent to the use by third parties. Parody,
\nhowever, involves a transformation of the authorial work without the consent of
\nthe copyright holder, often using a substantial amount of the source work.
\n Granting parody special consideration would allow parody to infringe on
\ncopyrighted works providing they meet the necessary criteria. In order to establish if special
\nconsideration should be afforded to parody, I will need to decide whether the
\nbenefits of parody outweigh the potential infringement on copyright and
\nindividual freedom of expression. <\/p>\n\n
\nexpression<\/strong><\/li>\n<\/ol>\n
\nopposition to parody is the availability of alternative methods of expression.
\n It is argued that whilst freedom of expression is a fundamental right,
\nthis does not extend so far as to automatically allow copyright infringement as
\na form of expression, particularly when there are other methods of expression
\navailable. I would argue that this argument is flawed as there are indeed
\ncircumstances under which parody may be the most effective means of expressing
\nan opinion[13]<\/a>,
\nparticularly in the case of target parody where the work itself is commented
\non. Further, it is not clear who should be the arbiter on which is the
\nmost effective method of expression; presumably this would fall to the
\njudiciary which would give far too much discretion and lead to uncertainty. It would strain freedom of expression
\nconsiderably if authors were restricted in how they could respond to other
\nauthorial works. This debate was raised in the case of Ashdown v
\nTelegraph Group Ltd, where the Court of Appeal discussed whether the
\nreproduction of an extract of a memorandum violated copyright laws:<\/p>\n
\nexpression will be sufficiently protected if there is a right to publish
\ninformation and ideas set out in another’s literary work, without copying the
\nvery words which that person has employed to convey the information or express
\nthe ideas \u2026.. however, circumstances can arise in which freedom of expression
\nwill only be fully effective if an individual is permitted to reproduce the
\nvery words spoken by another.[14]<\/strong><\/a><\/em><\/em><\/p>\n
\nsuggesting that on occasions it is justified to directly copy a work, so this
\nshould extend to taking a \u2018substantial\u2019 amount for the purposes of parody.<\/p>\n
\ntarget parodies, in the case of weapon parodies, the author would likely grant
\na licence for the parody[15]<\/a>.
\n Rutz[16]<\/a>,
\nI believe, has a strong rebuttal to this point.
\nIf an author disagrees with the message coming from the weapon parody,
\nit is unlikely they will authorise it. Further, the concept of needing
\nthe author of the works to licence the parody, target or weapon, undermines the
\ncore premise of parody; to mock society.
\nIt is difficult to fully comment on society, particularly in a negative
\nmanner, if you have first had to seek permission before publishing. R\u00fctz
\nrightly explains that, \u2018if the target is
\na set of values cherished by the copyright holder or his loyal audience or
\nreaders, he certainly would not allow weapon parodies using his works<\/em>\u2019.[17]<\/a>
\n Whilst this would allow parodies in certain circumstances where the
\nauthor agrees with the message, it would place a large restriction on parodies
\nwhich are negative in their commentary.<\/p>\n
\nfreedom of expression extends to all citizens, so covers authors and their
\naudiences as well as parodists and their audiences. To therefore claim that
\nparody breaches freedom of expression for authors and their audiences does
\nnothing to remedy that fact that by preventing parody it is harming the freedom
\nof expression granted to parodists and their audiences. Creating a parody
\ndoes not limit the freedom of expression of the author and in fact could
\npotentially strengthen it by increasing the audience and furthering the
\ndissemination of the knowledge. It could be argued that we should only allow
\nparody in cases where it is the only effective method of expressing the idea. However, I believe this is too narrow an
\ninterpretation of parody which would be far too difficult to judge due to
\nparodies subjective nature and would lead to both legal uncertainty an increase
\nthe number of litigants. I would argue that is parody should be allowed
\nso long as it is an effective method of expressing the idea.<\/p>\n\n
\ncaution with regards to allowing parody as an exception to copyright. In the Copyright
\nDirective 2001, the EU granted Member States the right to \u2018provide for exceptions or limitations to the
\nrights in the case of use for the purpose of caricature, parody or pastiche\u2019<\/em>[18]<\/a>.
\n I believe this section reflects how different nations will view parody
\nbased on societal norms and how the law needs to be reflect this. The case of Deckmyn[19]<\/a>
\nexpanded on the directive by stating that when considering a parody defence,
\nCourts must identify any competing fundamental rights involved in the case and
\nensure there is not too great of an infringement on them. This goes
\nfurther than the fundamental right to freedom of expression outlined above and
\nincorporates and prohibits discriminatory messages, or those concerning race,
\nreligion or gender[20]<\/a>. I believe it is possible to remedy these
\ncompeting fundamental rights with parody by the introduction of a new statutory
\nprovision which outlines that a parody will fail if it associates the author
\nwith a discriminatory message, or one concerning race, religion or gender. <\/p>\n
\nclaims that parody can attempt to deceive the audience about the true identity
\nof the author. This can be seen in the case of Clark v Associated
\nNewspapers Ltd[21]<\/a>,
\nwhere it was found that the disclaimer on the work was not sufficient to show
\nthe article was a work of parody rather than the actual diary of the author and
\nthat a large percentage of readers could be tricked into misattributing the
\nwork to the author rather than the parodist. As described by Spence, \u2018the author of even the most obvious parody
\ncannot assume that his work is [not] a misrepresentation under the law of
\npassing off.<\/em>\u2019[22]<\/a>
\nHowever, I find this concern to be irrelevant, as I do not
\nbelieve parody aims to deceive. By its very nature parody requires the
\naudience to recognise the original work and the transformative nature to
\nunderstand the meaning. If a parody merely mimicked the original without
\nadding anything further, it would not be classified as a parody, rather a
\ndirect copy. In the Clark[23]<\/a>
\ncase, I believe the case would have succeeded with a clearer acknowledgement of
\nthe author. Further, specific protections can be afforded to similar cases
\nthrough the law of passing off without the need to undermine the special
\nconsideration afforded to parody. <\/p>\n\n
\nargues that parody is already prevalent throughout society and is largely a
\nself-governing area of law and therefore adding special consideration is
\nunnecessary and may cause further confusion and lead to an increase in
\nlitigation. I would argue that there is no suggestion that affording
\nspecial consideration to parody would lead to an increase in litigation, as
\nagreed by Lord Phillips in the case of Ashdown, \u2018we
\ndo not foresee this leading to a flood of litigation<\/em>.\u2019[25]<\/a>
\n In the rare case where freedom of expression and copyright conflict,
\nCourts will have to make an assessment on a case by case basis. In
\nfact, I would argue the opposite, affording special regulation would add
\ngreater legal certainty as the area now is comprised primarily of fragmented
\ncase law, which may ultimately reduce the amount of litigation in this area.<\/p>\n\n
\nas a defence to copyright on an economic basis. In Laugh it Off[26]<\/a>,
\nit was found that the parody would not substantially affect the economic value
\nof the original authorial work and therefore it was permitted. This
\nassumes that the primary motivation of copyright law is to protect the authors
\nright to the economic value of their product.
\nWhilst I do not agree this is the sole aim of copyright law, I do
\nbelieve it presents a strong argument in favour of parody. If the author
\nis not losing out economically from the creation of the parody, and does not
\ninfringe on the fundamental rights outlined above, it does not seem to be a
\nviolation of copyright. <\/p>\n
\nUS case of Campbell v Acuff-Rose Music[27]<\/a>,
\nwhere it was argued that the parody had infringed on the market of the original
\nauthorial work. This point was disputed by the Courts who held that there
\nwas no competition between the original and the parody. This is because a parody necessarily aims at
\na different audience to the original. A parody would only infringe on the
\neconomic rights of the original author if the parody served as a substitution
\nfor the original work. In the Campbell[28]<\/a>
\ncase, it was found that the parody would have little impact on the market for
\nthe original work but may have an impact on the derivative market, in this case
\nspecifically rap music. I do not believe
\nan impact on an industry unrelated to the original authorial works is enough
\nreason for to impose restriction on parody and would only serve to restrict the
\nautonomy of consumers. <\/p>\n
\n could actually be of benefit to both the original market and the
\nderivative market, particularly if the parody should receive notoriety, by
\npromoting the consumption of the both the original work, and alternatives to
\nthe derivative work. This argument would receive wide utilitarian support
\nas parody would bring about the most economic benefits for the most amount of
\npeople whilst increasing choice for the consumer. It is also important to mention that Courts
\nshould be reluctant to find that a parody has an impact on the potential market
\nof the original work, as it is crucial for individuals to have the right to
\ncompete and criticize, even if through the form of a parody. For example,
\na negative book review may serve to kill the market of the original book, but
\nthis is justified as the purpose is for comment and criticism and this actually
\nimproves consumer knowledge and choice.<\/p>\n\n
\n
\nparody which is often overlooked in this debate. Whilst undoubtedly the
\noriginal authorial work is important and should be afforded copyright
\nprotection due to the work that has gone into its creation, a parody also
\nrequires work on the part of the parodist in order to create the new
\ntransformative work. The debate is often framed with the author being a
\nhardworking creator and the parodist unjustly infringing on the work, however,
\nthis is often inaccurate. As outlined by
\nSpence, \u2018… lawyers have tended to
\nassume that … the activity of \u201ccreators\u201d does not depend upon existing work
\nand that the activity of \u201cusers\u201d is rarely creative. But the parodist is both a
\n\u201ccreator\u201d and a \u201cuser<\/em>\u201d\u2019.[29]<\/a>
\n We should not undermine the work done by parodists simply because they
\ndraw inspiration from another source.<\/p>\n
\nconsideration?<\/strong><\/p>\n
\nthere is a compelling reason to afford parody special consideration within
\nintellectual property law. Whilst there are a number of potential
\ndownsides to a very broad adoption of parody, I believe these can be mitigated
\nthrough statutory provision.<\/p>\n
\nconsideration afforded to parody is outlined in section 107 of the Copyright
\nAct 1976 adopting a four stage approach to dealing with cases:<\/p>\n
\nincluding whether such use is of a commercial nature or is for nonprofit
\neducational purposes;<\/em><\/em><\/p>\n
\nportion used in relation to the copyrighted work as a whole; and<\/em><\/em><\/p>\n
\nmarket for or value of the copyrighted work.[30]<\/strong><\/a><\/em><\/em><\/p>\n
\nin which the Court considered and criticised the outline. The Court
\nstated the when deciding on the first factor, consideration should be given to
\nthe transformative nature of the works, affording greater protection to the
\nmost transformative works. This would remedy any fears about parody
\nallowing for too much direct copying, however I do not believe this adds much
\nto the third point raised in section 107[32]<\/a>. The second factor adds little to parody cases
\nas outlined by the Courts, \u2018since
\nparodies<\/em> almost invariably copy publicly known,
\nexpressive works\u2019<\/em>.[33]<\/a>
\n The final factor goes some way to remedying any economic arguments
\nagainst parody – in most cases the parody will not serve as a substitute for
\nthe original authorial work and therefore this section will not be invoked,
\nhowever in the rare circumstance where the parody acts as a substitute, this
\nwould grant the judiciary the power to protect the original author\u2019s rights.
\n For example, this clause could be invoked in a case like Ashdown[34]<\/a>,
\nwhere the parody would act as a substitute.<\/p>\n
\nattitude towards parody which falls under the category of, \u2018parody, pastiche and caricature\u2019<\/em>[35]<\/a>
\nhowever no definitions for these terms are provided. France instead
\nleaves much of this area open to judicial discretion on a case-by-case
\nbasis. <\/p>\n
\ndefence should be introduced into copyright law by statute. It should
\nstate that parody are permitted so long as there is a transformative nature to
\nthe work which would be identifiable for the intended audience of the parody
\nand the parody expresses either humour, mockery or shock value at the authorial
\nwork itself or something external. Further, a parody should not be
\npermitted if it would serve as a direct substitute for the authorial work so to
\nsubstantially impact the market or value of the original authorial work. This definition would allow a relatively
\nbroad understanding of parody and would allow enough judicial discretion to
\ndecide on a case by case basis which is necessary for this area of law. I
\nbelieve this would be a fair trade off between legal certainty and flexibility
\nwithout the potential to substantially increase the amount of litigation. <\/p>\n
\ndeserves special consideration within intellectual property law. A parody
\nexception to copyright is needed in order to promote freedom of expression for
\nthe parodist and their audience. As well as providing a public good
\nthrough humour and social commentary, parody can provide economic benefits to
\nthe parodist and original author. Whilst there are concerns over parody
\nimitating the original author and discriminatory messages being attributed to
\nthe author, both these issues are easily mitigated through statutory provision
\nregarding passing off and fundamental rights. If a parody defence is
\ncreated in statute, a certain degree of judicial discretion is necessary,
\nhowever this is limited and promotes a fair balance between certainty and
\nflexibility. The current legislation
\nworldwide does not adequately protect parodists and far too much is left to
\njudicial discretion, however this is not an argument against affording parody
\nspecial consideration, rather these mistakes can help shape more robust
\nlegislation to help promote parody and freedom of expression.<\/p>\n\n
\n
\n
\n
\nSpence, Intellectual Property and the Problem of Parody<\/em> [1998] LQR 594,
\n594<\/p>\n
\nJongsma, Parody After Deckmyn \u2013 A Comparative Overview of the Approach to
\nParody Under Copyright Law in Belgium, France, Germany and The Netherlands
\n(2017) 48 IIC 652, 653<\/p>\n
\nOxford English Dictionary (2002)<\/p>\n
\nC-201\/13 (Grand Chamber 2014) para 20<\/p>\n
\nRosati, Just a laughing matter? Why the decision in Deckmyn is broader than
\nparody (2015) 52 CML Rev 511, 517<\/p>\n
\nThere is a further question here about whether the Courts should view the
\nhumorous effect as the reasonable man or as a member of the intended audience.<\/p>\n
\nConstitutional Court 2005)<\/p>\n
\n(n 4)<\/p>\n
\nRutz, Parody: a missed opportunity? [2004] IPQ 284, 289<\/p>\n
\nPosner, When Is Parody Fair Use? [1992] JLS 67<\/p>\n
\nF2d 301 (1992)<\/p>\n
\n(n 4)<\/p>\n
\n(n 9)<\/p>\n
\nEWCA Civ 1142 para 39<\/p>\n
\n(n 10)<\/p>\n
\n\u2018Parody: A Missed Opportunity?\u2019 (2004) 3 I.P.Q. <\/em>284<\/p>\n
\n <\/em>284<\/p>\n
\nDirective 2001\/29 [2001] OJ L 167\/10 Art
\n5(3)(k)<\/p>\n
\n(n 4)<\/p>\n
\n(n 5)<\/p>\n
\n1 All ER 959<\/p>\n
\n(n 1) 599<\/p>\n
\n(n 21)<\/p>\n
\nDeazley, Taking Backwards the Gowers Review (2010) 73 MLR 785<\/p>\n
\n(n 14) para 45<\/p>\n