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Having a Laugh? The Parody Exception to Copyright Infringement

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About The Author

Liam Reynolds (Regular Contributor)

Liam is a second year Law student at the University of Manchester. He spent a brief time at the University of Cambridge studying social sciences before realising that anything suffixed with ‘ology’ was definitely not for him. Liam was honoured to receive three scholarships in the first year of his LLB and is looking forward to being published in the Manchester Review of Law, Crime and Ethics later this year.

By the very nature of satire or parody, you have to love and respect your target and respect it enough to understand every aspect of it, so you can more effectively make fun of it.

T.J. Miller, actor and comedian

Parodies are an enigmatic force of comedy. Notoriously difficult to define with precision, parodies are something we ‘know when we see’. They take music videos, political speeches, and everything in between, and warp and twist them into a mockery for the amusement of others. They are a significant tool for social commentary and free speech, allowing deep layers of political commentary in thinly veiled jokes. The rise of social media has meant that parody is no longer confined to professional comedians: anyone can record themselves mocking the words or actions of a celebrity, post it online, and have it disseminated to millions of people across the globe.

Parodies can be socially problematic. The mass murder of writers for the French Charlie Hebdomagazine in 2015 over a satirical drawing of the Prophet Mohammed, and the ensuing political arguments, demonstrate how toxic parodies can be. They can also be legally problematic. Unlike other areas of intellectual property law, such as trade marks or patents, copyright does not require registration. It arises automatically in any original work in which it can subsist, such as a literary work, an artistic work, or a sound recording. Moreover, case law illustrates how liberally such terms can be applied: Ashdown v Telegraph Group [2001] EWCA Civ 1142, [2001] 4 All ER 666 demonstrates that what constitutes a ‘literary work’ goes well beyond typical ideas of novels and poems, and into other works, such as private memos. How can these rights, which arise automatically to protect the creators of such works, be reconciled with parodies? After all, a parody cannot truly be called a parody unless it takes a work and uses it in such a way that the source material is recognisable to the audience.

Copyright, Designs and Patents Act 1988 

Copyright law derives primarily through the Copyright, Designs and Patents Act 1988 (CDPA), which identifies works that can attract copyright and how they are protected.

Section 16(1) CDPA outlines the ‘restricted acts’ – acts which only the copyright owner, or someone acting with their permission, is legally entitled to carry out without a copyright infringement taking place. It is difficult to imagine a copyright owner authorising a parody of themselves. The Act makes clear that a ‘copy’ of the work need not be identical to the original work, but that any ‘substantial’ copy of the work, whether directly or indirectly (s 16(3)) by a person who is not authorised to do so is enough to amount to a copyright infringement. What amounts to a ‘substantial’ part of a work can be minimal, as demonstrated in the European case of Case C-5/08 Infopaq v Danske Dagblades Forening [2009], where the reproduction of eleven consecutive words taken from a copyrighted work was held to amount to infringement.

When one considers the importance placed on freedom of expression in Europe (see Article 10 ECHR)  this strict enforcement of copyright owners’ rights has great potential to disrupt and distort freedom of expression through the medium of parody.

InfoSoc

European Directive 2001/29/EC on copyright and related rights in the information society (‘InfoSoc’) provides a list of optional exceptions to copyright infringement (in Article 5)  which Member States are free to implement as they see fit. The exception for ‘caricature, parody, or pastiche’ (Art 5(3)(k)) was finally implemented into English and Welsh law through secondary legislation, coming into force on 1st October 2014. 

While it is to be praised that the parody exception is finally in force in English law, there is little elucidation as to what ‘caricature, parody, or pastiche’ really entails. Surely any concept of f parody is subjective and dependent on context? One case from Europe potentially makes the job of dissecting this exception to infringement clearer, though as it will be seen below, the law remains regrettably uncertain.

Free to be Hateful? Deckmyn v Vandersteen 

Are there things which go beyond the realm of parody, which are so socially and politically toxic that they cannot be considered worthy of legal protection? A preliminary reference to the Court of Justice of the EU demonstrates that it is ultimately up to the Member State to decide what is ‘too far’ to be a parody.

Deckmyn v Vandersteen concerned a calendar produced by Mr Deckmyn, a member of the far-right ‘Vlaams Belang’ political party in Belgium, and disseminated at a New Year’s party. The calendar contained an image adapted from an issue of a popular Belgian comic, ‘Suske en Wiske’. That particular issue was entitled ‘The Wild Benefactor’, and featured a man throwing coins into a crowd. Mr Deckmyns adaptation featured the Mayor of Ghent throwing coins; the recipients in the crowd had been replaced by people with dark skin, several drawn in Islamic dress. The estate of Mr Vandersteen, who had drawn the original cover and who was by this point deceased, brought an action for copyright infringement. Questions were then referred to the European court as to what constitutes a parody.

The Court answered the question with a two-stage test for assessing a parody: first, it must evoke an existing work whilst being ‘noticeably different’ from it, and second, it must constitute an expression of humour or mockery. On its face, this decision seems logical. However, I advance here the argument that two crucial questions remain, along with one overriding difficulty.

Remaining Problems

Firstly, when does a parody go ‘too far’ to be acceptable? Paragraph 31 of the reference acknowledges that copyright holders may have a legitimate interest in ensuring their work is

not associated with a discriminatory message. The opinion of the Advocate General, however, goes much further. In paragraph 80 of his opinion he champions freedom of expression, even where ideas ‘offend, shock, or disturb’ and goes on to say that an adaptation should only not be considered to be a parody where it ‘conveys a message radically opposed to society’s most deeply held beliefs’ (para 85). This is a very wide, liberal approach that seems at odds with the final decision of the Court. It remains difficult to see where the line is drawn between freedom of expression, and freedom from discrimination.

Secondly, it is hard to completely reconcile the Court’s ruling with the wording of the InfoSoc Directive. The definition of what is commonly called the ‘parody exception’ also embraces caricature and pastiche. The Court ruled that for a use to fall within the exceptions in the Directive it must include an element of humour or mockery. This presents a particular problem with regards to ‘pastiche’, which does not necessarily involve any humour at all. Pastiche may be celebratory or even tragic, but it is rarely associated with humour or mockery. It remains unclear how this ruling can be reconciled with the Directive, and it leaves potential users of copyrighted work in an uncertain legal position in this regard.

Finally, the lack of harmonisation in this area, and the autonomy afforded to Member States, necessarily means that there will be widely different interpretations of the law. What is considered humorous in one state may not be so in another. A person who creates a parody in England, then, may not be afforded the same protection as someone who has created a comparable adaptation in Poland, due to different ideas of what is funny or appropriate. Indeed, within any community different individuals will disagree on what is funny, or what is offensive.

With that said, it is difficult to imagine harmonization being effective in this area, as it would essentially amount to one European idea of humour being forced on all 28 Member States, which would clearly be unacceptable.

Final Thoughts

Considerations of where to draw a line between acceptable and unacceptable will always be fraught with social and political tension. The fundamental importance of freedom of expression in the EU must be celebrated, and it must include the right to offend. Events such as the Charlie Hebdo attacks, and movements like the so-called Islamic State which seek to frighten and intimidate citizens into sacrificing their liberty, stand against the principles the Western world holds dear.

The difficulty lies in establishing what exactly deserves our respect and our protection. The Court of Justice in Deckmyn did their best to balance these interests, but even their decision is at odds with the opinion of the Advocate General who clearly leaned more to the side of protecting liberty. This tension between the two opinions highlights the difficulty in establishing a clear approach to parodies in copyright law. Unfortunately, it is difficult to see a coherent and unified way forward.

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Tagged: Commercial Law, Intellectual Property

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