Taylor Wessing

New parody exception: is imitation the sincerest form of flattery?

Question

What is the new proposed copyright parody exception and what will the impact of it be in practice?

Answer

In December 2012 the government announced that it would be modernising UK copyright law by providing a parody exception to give people "greater freedom to use others' works for parody purposes". This decision followed findings from the Hargreaves Report in 2011 that "the UK's current IP system is falling behind what is needed, especially in the area of copyright". Even earlier, in 2006 the Gowers Review of Intellectual Property recommended that there should be an "exception to copyright for the purpose of caricature, parody or pastiche by 2008". After months of consultations, the United Kingdom's long-awaited parody exception is expected to come into force in April 2014. 

In the European Union the list of optional exceptions that member states are permitted to use is contained in the EU Copyright Directive (2001/29/EC). Article 5(3)(k) of the directive permits member states to provide for exceptions or limitations to the rights of reproduction and communication in the case that the use is for the purpose of caricature, parody or pastiche. 

Proposed exception

The Intellectual Property Office's proposed drafting of the new UK exception is as follows:

"30B Caricature, parody or pastiche:

  • Copyright in a copyright work is not infringe [sic] by any fair dealing with the work for the purposes of caricature, parody or pastiche.
  • To the extent that the term of a contract purports to restrict or prevent the doing of any act which would otherwise be permitted under this section, that term is unenforceable."

Interestingly, ‘caricature, parody or pastiche' is not defined within the new provisions. The question therefore arises as to how the terms are to be defined. The Oxford English Dictionary defines parody as "an imitation of the style of a particular writer, artist or genre with deliberate exaggeration for comic effect". Caricature is defined as "a depiction of a person in which distinguishing characteristics are exaggerated for comic or grotesque effect", while pastiche is "an artistic work in a style that imitates that of another work, artist or period". The future rulings in the Belgian reference to the Court of Justice of the European Union in Deckmyn et Vrijheidsfonds may provide more guidance.    

Unlike the Copyright Directive, the wording of the new UK provision is centred on the "fair dealing" exception. While there is no statutory definition of ‘fair', the courts are likely to consider the following factors when assessing whether use amounts to fair dealing:

  • the dominant impression of the parody;
  • the extent of the "transformative" character of the use and the user's own intellectual creation;
  • the motive of the user;
  • the purpose of the parody (eg, non-commercial or commercial/advertising);
  • whether there is conflict with normal exploitation of the work (eg, adverse effect on sales);
  • proportionality of the amount taken;
  • necessity to use that particular work;
  • harm to author (eg, adverse effect on reputation); and
  • freedom of expression.

It is also possible that the three-step test will shape the scope of the exception. This test comes from Article 9(2) of the Berne Convention and is incorporated in the Copyright Directive, and allows exceptions only:

  • in certain special cases;
  • which do not conflict with a normal exploitation of the work; and
  • which do not unreasonably prejudice the legitimate interests of the rights-holder.    

Examples of parody cases

We do not know exactly what sort of parodies will be permitted under the new exception, but it is likely that there will be a sliding scale of applicability to: 

  • political comment and other public interest expression (including criticism of large companies);
  • non-commercial artistic/comedy parodies;
  • commercial parodies for entertainment purposes; and
  • commercial parodies for free riding/advertising purposes.

One interesting parody case is the US case of Leibovitz v Paramount Pictures, where photographer Annie Leibovitz sued Paramount Pictures for copyright infringement after Paramount parodied Leibovitz's photograph of a pregnant Demi Moore as part of the promotional campaign for its film, Naked Gun 33 1/3: The Final Insult. The Southern District of New York found the use to be fair and a subsequent appeal was dismissed. The court found that, while the Paramount photograph drew heavily from Leibovitz's work, the use was fair considering the parodic purpose of the work and the absence of market harm. It was held that parodies were likely to generate little or no licensing revenue. Furthermore, the creative input on the parody work was noted; the original photo was reshot, and there were several distinguishing features, most significantly the lighting of the photograph. 

To decide whether the proposed UK parody exception would apply to this case, we must apply the above criteria. The parody is transformative to an extent; it subverts the original work and gives it a new, comic twist. However, although the parodist changed certain elements of the photograph (as described above), the pose is identical. Most significantly, there was no need to use this particular work as the photograph has no connection to the film. The dominant impression is the promotion of the business, and the purpose of the parody is commercial.  Although there would not be conflict with the normal exploitation of the original work, it might be argued that this would cause harm to the author by devaluing the image. Overall, in this case, it seems that the use would not be fair and that the exception would probably not apply. 

Leibovitz v Paramount PicturesLeibovitz v Paramount Pictures

In an English case, the Unilever brand obtained an injunction (by relying on copyright infringement) to prevent the political party BNP from showing a party broadcast with a picture of a jar of Marmite in the corner of the screen next to the strapline "Love Britain, Vote BNP". While the BNP claimed that this was a "spoof" in response to the Marmite campaign which featured a 'Love Party' and a 'Hate Party', Marmite was concerned that this could cause confusion for consumers. 

Unilever brand obtained an injunction against the political party BNP

 

 

 

 

 

 

 

 

 

 

If we were to apply the above parody criteria to this case, it appears that the exception would probably not apply. The work is being used in a playful way and is making fun of both the brand and the BNP (ie, in the way that the party polarises voters). Furthermore, neither Marmite nor the BNP are in commercial competition. However, Unilever might argue that the use of the Marmite label in this context could cause harm to reputation, especially as there was actual evidence that some visitors to the BNP website thought that Marmite was endorsing the BNP. There was also no need for the BNP to use the Marmite label to put across their political message. 

One final example can be made of the "Newport (Empire State of Mind)" parody. Applying the above parody criteria to the song, it is suggested that the exception would not, on balance, apply to it. Although it could be argued that a substantial part of the lyrics is used, all of the musical work is, and the music is not transformed in any way. The use of the music is arguably commercial, as it was created to promote the stars of the video. The music is not used as part of a commentary or criticism. Furthermore, there was no particular need to use this specific song; a number of songs could have been used to make the point about Newport. There is no comment or critique in the lyrics to justify the taking of the whole of the musical part. The outcome might be different if the music was being used for a different purpose (ie, for a political purpose or protest).

On the other hand, one might argue that the parody exception would apply. This is a comic repositioning of the original work and commercial use is merely a by-product of the success of the parody. The lyrics are transformed and the use of the music is bound up in that transformation. There is not a conflict with the normal exploitation of the work because the parody targets different markets. 

Therefore, these examples show the difficulties that rights owners, parodists, their advisers and courts will have in applying a parody exception.

Free speech

Creators of parodies may be able to rely on Article 10 of the European Convention on Human Rights, which protects free speech. In one example, Louis Vuitton sued artist Nadia Plesner for her image of a starving African child carrying a Louis Vuitton handbag, by relying on design rights. Plesner sought an interim injunction, but the judge ruled that Article 10 trumped Louis Vuitton's property right. 

What is the likely impact of the new exception?

As the above examples demonstrate, it is difficult to judge how widely this exception will be interpreted. Also, in practice, there are several legal rights which would mean that a parody, even if permissible under copyright law, could still not be lawful. A claimant may be able to rely on trade mark and design right infringement, and if a parody misrepresents that it is in connection with or associated to the claimant, the claimant might have a remedy in passing off.  A cause of action may also arise for a parody which is defamatory.

Another way in which a parody may be restricted is by using the so-called ‘moral right'. The Copyright, Designs and Patents Act 1988 gives an author a right "not to have his work subjected to derogatory treatment". ‘Treatment' is defined as "any addition to, deletion from or alteration or adaption of the work" and the treatment of the work will be derogatory "if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director". In the majority of parodies, there will be something by way of "addition to, deletion from or alteration or adaption". Due to the very nature of parodies, the requirement that the parody is "otherwise prejudicial to the honour or reputation of the author" will occasionally be met. So, where the author is the subject of the work, this potentially wide test means that authors can rely on this "moral right" to prevent the parody exception from applying. 

One illustration of how powerful the "moral right" can be is from a Canadian case, Snow v The Eaton Centre. A sculptor had made some Canada Geese to hang in a shopping centre. At Christmas time, the mall's owners put red ribbons round the necks of the geese. The sculptor successfully sued the shopping centre on the basis that the sculpture's integrity was "distorted, mutilated or otherwise modified" and that was to "prejudice of the honour or reputation" of the author. 

Therefore, while the new parody exception is designed to give greater freedom to those creating parody works, there will still be rights for claimants to rely upon. It remains to be seen how widely this exception will be interpreted by the courts.   

Suzy Shinner is a trainee in the trade marks, copyright and media department of Taylor Wessing.

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