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What’s So Funny About Parody?: Reviewing the CDPA’s Latest Exception to Copyright Infringement

February 15, 2017

In this article, Jordan Rhodes (4th year LLB) traces the still relatively new exception to copyright infringement where the use of a work is for the purposes of parody. The analysis ultimately recognises that parody is an inherently vague and subjective concept, and offers a perspective from both an owner's economic copyright as well as an author's moral rights...

 

 

What’s So Funny About Parody?: Reviewing the CDPA’s Latest Exception to Copyright Infringement - Jordan Rhodes (4th year LLB)

Introduction

Do you remember three years ago when Miley Cyrus released her controversial Wrecking Ball music video? Can you recall the imagery of demolition equipment that seemed almost inescapable online – and not just with Cyrus astride? Parodies of the clip were perpetually injected into the digital realm immediately following the video’s official release; BBC1 radio host Greg James is a notable example.[1] YouTube parodist Bart Baker has racked up almost 100 million views for his interpretation of the now iconic scene.[2] Evidently, parody embodies a fundamental aspect of today’s online culture and critical humour. And yet, it is remarkable that the law of copyright only seemed to catch up with this phenomenon in the past two years.

In 2014, the UK Parliament amended the Copyright, Designs and Patents Act 1988 (“CDPA”) to include a new exception to copyright infringement where the use of a work is for the purposes of caricature, parody or pastiche. This concept, however, innately conjures a degree of ambiguity: just what exactly can be considered a “parody”? The aim of this paper is to present an overview of the still relatively novel exception and is structured as follows. First, what actually amounts to copyright infringement in the UK will be outlined, in order to highlight the problems encountered in the pre-2014 framework. Secondly, the development of the exception is canvassed, with reference to the Gowers and Hargreaves reviews. Thirdly, the provision itself will be sketched and its interpretation at the Court of Justice of the European Union (“CJEU”) level analysed. Finally, the author will review the parody exception through an intriguing yet fundamental lens: the lens of moral rights. Although the fair dealing exception must be welcomed in light of the digital dissemination of parody works, it is clear that its scope, limitations and compatibility with moral rights remains distinctively nebulous.

Copyright Infringement

A copyright is an owner’s “exclusive right” to use a qualified work.[3] The CDPA restricts copying, issuing copies, renting, lending, performing, communicating to the public and making an adaptation of a protected work.[4] The aforementioned acts are known as “acts restricted by copyright”,[5] and can only be performed by the copyright owner or licensee, hence the right’s “exclusivity”. It should be noted that the owner of a copyright will not necessarily be the author of the work. In the UK, ownership of copyright initially vests in the author,[6] that being the person who creates the work.[7] However, typically this right will be assigned to a publisher or distributor, who will then become the owner of the copyright.[8] Only an owner or licensee has the right to exploit a work, and accordingly, copyright infringement will occur where a person, without authority, engages in, or authorises a third party to engage in, a restricted act.[9] The legislation further provides that a restricted act will only amount to infringement when it relates to “the work as a whole or any substantial part of it”.[10] Those final five words are fundamental; the Act provides that even the use of a “substantial part” of a work will be enough to trigger copyright.

At this very preliminary juncture, the tensions between copyright and parody begin to crystallise. If infringement only requires a substantial taking, it is clear that, without an explicit derogation, parodies can rarely exist. By definition, a successful parody must necessarily evoke the source work.[11] The US Supreme Court has recognised that “when parody takes aim at a particular original work, the parody must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable”.[12] And yet, in the UK, the parody must do this without reproducing a substantial amount of the source.

The anomaly is illustrated in Schweppes Limited and Others v Wellingtons Limited,[13] where the defendant intentionally parodied the distinguishable Schweppes label for its own brand of bubble bath. The defendant argued that, by bestowing such mental labour and subjecting the source work to such revision, it had effectively produced an original work, thus pushing it beyond the scope of infringement.[14] Falconer J. acknowledged that the bottle was “in the nature of a parody; the article itself is meant to be sold, no doubt, as a joke, and to have the characteristics of a caricature”.[15] However, that did not confer a different test or threshold to which infringement is established: “The sole test is whether the defendant’s work has reproduced a substantial part of the plaintiff’s ex hypothesi copyright work”.[16]

The impact of this line of reasoning is that, without a specific provision exempting parody, or at least permitting it in certain circumstances, the lawfulness of a parody would continue to fall at the mercy of this “substantiality” assessment.[17] Indeed, case law has gone so far as to emphasise that “realistically”; “no real injury is done to the copyright owner if no more than an insignificant part of the copyright work is copied”.[18] Academics have asserted that, following this, “only trivial or insignificant aspects of a copyright work are now beyond the control of the copyright owner”.[19] Once again, successful parodies, which inherently reproduce more than insignificant aspects of their source, would breach s.16. Such a copyright framework essentially rejects any facilitation of the creative, cultural and economic advantages bestowed by parodies.

Development: The Road to S.30A

The era of technological change, bolstering the digitisation of parodies, called for a re-examination of this tension with the pre-2014 rubric. The Gowers Review[20] was the result of a commission by the government, with the aim of evaluating whether UK copyright was “fit for purpose in an era of globalisation, digitisation and increasing economic specialisation”.[21] Based on the needs of technology, Gowers recommended implementing a specific exception for parody, justifying this on the grounds that such an exception could “create value”.[22]

Five years succeeding Gowers, only 25 of the 54 recommendations were actually implemented.[23] Professor Hargreaves subsequently compiled an independent review following a commission by the Prime Minister.[24] The Hargreaves Review recognised that the government should “firmly resit over regulation of activities which do not prejudice the central objective of copyright, namely the provision of incentives to creators”.[25] As a result, the Review recommended an express parody exception,[26] arguing that parody had become a seminal aspect of the lives of private citizens, particularly through social media. Parody, it was reported, “encourages literacy in multimedia expression in ways that are increasingly essential to the skills base of the economy”.[27]

Taking these reviews together, a general trend can be discerned, namely: that in light of the new importance of parody works in digital communication, parodies should be shielded from rigorous copyright enforcement in order to realise their cultural and economic value. This rationale is sound, so long as safeguards are instilled to strike the right balance between the interests of the copyright holder and the parodist. The Intellectual Property Foresight Forum, in its recommendation of a parody exception, argued that, whilst an exception could result in greater use of a copyright work, it would not necessarily result in greater abuse of that work.[28] Other arguments advanced included European harmonisation,[29] upholding freedom of expression,[30] and the licensing system’s inability to facilitate parodies.[31]

Reg.5 Copyright and Rights in Performances (Quotation and Parody) Regulations 2014[32] inserted s.30A into the CDPA, incorporating a parody exception. S.30A came into force on 1 October 2014.

A New Exception: Caricature, Parody and Pastiche

S.30A states that fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright. The provision gives force to Art.5(3)(k) InfoSoc Directive,[33] which permits, but does not oblige,[34] Member States to legislate such an exception in their national copyright systems.

The provision falls within the UK’s so-called “fair dealing” doctrine. In addition to parody, fair dealing encapsulates private study and non-commercial research,[35] criticism or review,[36] and the reporting of current events.[37] The use of a work for any of these purposes will not infringe copyright, so long as the dealing is deemed “fair”. The scope of fairness, however, is not delineated in the CDPA. Instead, the concept calls “for a qualitative assessment”,[38] whereby the courts “are left to judge fairness in the light of all the circumstances”.[39] Lord Phillips in Ashdown v Telegraph Group Ltd[40] noted that “it is impossible to lay down any hard-and-fast definition of what is fair dealing, for it is a matter of fact, degree and impression”.[41] In Hubbard v Vosper,[42] Lord Denning considered various factors that could influence the assessment, namely: (i) the extent of the use, (ii) the use made, and (iii) the proportions of the use.[43] Ultimately, the assessment of fairness is relatively impressionistic – the courts being required to “consider all the circumstances of the ‘dealing’ in the light of the purposes for which alone it is permitted”.[44]

The interpretation of parody came before the CJEU in Deckmyn v Vandersteen,[45] a preliminary ruling from the Brussels Court of Appeal. Deckmyn concerned calendars distributed in Ghent by the far-right Flemish nationalist party, Vlaams Belang. The calendar illustration closely resembled a Suske en Wiske comic cover, comprising a character in a white tunic soaring above a group of people, throwing coins. In the Vlaams drawing, the character was replaced by the Mayor of Ghent, and those picking up the coins below were depicted as people of colour, some wearing veils. The intention was to communicate that, under the mayor’s policies, the residents of Ghent were paying taxes to support non-residents.[46] The case was  remitted to the CJEU for an interpretation of “parody”.

The CJEU ruled that “the concept of ‘parody’ … must be regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union”.[47] This operates irrespective of the voluntary nature of Art.5(3)(k) InfoSoc.[48] As InfoSoc provides no definition, parody’s “meaning in everyday language” should be applied.[49] First, a parody must “evoke an existing work while being noticeably different from it”; and second, the parody should “constitute an expression of humour or mockery”.[50] Moreover, the CJEU, by reference to Recital (31) InfoSoc, held that the exception’s application “must strike a fair balance” between the copyright holder’s interests and the parodist’s,[51] all circumstances taken into account.[52]

In light of the particular case, the court also noted the discriminatory character of the Vlaams illustration, stating that “attention should be drawn to the principle of non-discrimination based on race, colour and ethnic origin”,[53] and that the right holders have “a legitimate interest in ensuring that the work protected by copyright is not associated with such a message”.[54] In reference to these statements, one could question the extent to which these matters truly are “for the national court to assess”.[55]

Evaluating this “calm and methodical approach”,[56] Seville views the CJEU’s interpretation as offering a “firm structure”, whilst simultaneously conferring “some margin of discretion” on national courts.[57] The author agrees; the CJEU breaks down the meaning of parody into its most fundamental components, leaving the application of that criteria to the national courts on a case-by-case basis. This appears to be the most logical approach to ever coming close to an exact definition: “Parody and satire encompass a wide range of expressive practices”.[58] The CJEU’s definition necessarily provides flexibility, whilst also seeking to secure some degree of certainty and uniformity – elements intrinsic of a harmonised copyright regime. It is maintained that the primary flaw regarding Deckmyn is its isolation as the only significant judgement pertaining to parody. Without a fuller body of case law, it will be difficult and unchartered for parodists, copyright holders, lawyers and judges to engage in the factual characterisation of parody.

Moral Rights

Our analysis of Deckmyn usefully leads us to the final section of this paper, which questions the compatibility of the new parody exception with moral rights. The discussion thus far has reviewed parody through the lens of an owner’s copyright. This exclusive right, however, can be sharply distinguished from an author’s moral rights, which vest only in the author and cannot be assigned to a publisher or distributor. Generally speaking, “moral rights offer legal recognition to an author’s special relationship with his or her own work”; they seek to safeguard an author’s interests that “[transcend] the motive of financial gain”.[59] Moral rights can therefore be contrasted with economic rights, viz. the rights to restrict reproductions or communications of a work. An author’s moral rights, on the other hand, are personal in character,[60] existing independently from the economic copyright subsisting therein. Accordingly, an author who assigns his exclusive right to exploit a work shall fully retain his bundle of moral rights.[61]

The CDPA prescribes four discrete moral rights: the right to be identified as the author[62]; the right to object to derogatory treatment of a work[63]; the right against false attribution[64]; and the right to privacy in private photographs.[65] The second of these rights, otherwise known as the “integrity right”,[66] could present a direct conflict with the parody provision. Fundamental to the integrity right is the entitlement to object to distortions of a work which are prejudicial to the author’s honour or reputation.[67] A parody, by and large, will inevitably implicate the original author’s repute.[68] The question will be whether this implication is indeed prejudicial.[69] Commentators have recognised that “the use of the author’s own work to attack or criticise the author or his or her work may be argued to be a use which is prejudicial to that author’s honour or reputation”,[70] thus infringing his or her moral rights.

Typically, a change of context or affiliation should not be enough to amount to derogatory treatment[71] – there must be some form of distortion, mutilation or other modification.[72] In relation to Deckmyn, however, one might enquire whether the mere association with the discriminatory message was enough to curtail the parody exception. Indeed, the CJEU considered the “legitimate interests of the author”[73] in the necessary balancing exercise, which could tacitly designate a role for moral rights. The strength of this argument, however, is questionable, as Deckmyn was decided under the InfoSoc Directive, which notably excludes moral rights from its scope.[74] Given the case-by-case methodology pertaining to the “fair balance” assessment, however, it is not unreasonable to speculate that courts would, if the facts permitted, take into account moral rights when applying s.30A. One can only hope that the UK courts give moral rights the full and effective weight they deserve in the balancing exercise. For it is noted that: “The legal culture of England … is considered a hostile environment for moral rights”.[75]

Conclusion

As demonstrated, a copyright framework that does not advance any sort of exception effectively blocks any attempt to communicate a parody. The CDPA’s infringement standard of a “substantial” taking, qualified by Lord Hoffmann’s “no more than an insignificant part” test, would almost always prove fatal to a parodist’s case. Thus, a specific carve out is necessary. The justifications for s.30A are evident in the Gowers and Hargraves reviews, namely, the cultivation of economic and cultural value, coupled with the reality of parody popularity through digitisation. S.30A should therefore be welcomed into the UK’s copyright system. S.30A’s qualification of fair dealing is nothing new to our courts, who have the expertise and guidance in case law to make informed and fact-specific assessments as to what amounts to “fair”. As we have seen, the specific meaning of “parody”, however, raises complexities. This lies primarily in the fact that parodies come in various forms and mediums. The CJEU’s interpretation in Deckmyn facilities both flexibility and uniformity, and should therefore be admired. However, in the absence of further case law, the scope and limitations of s.30A remain unclear. Given the different interests at stake, particularly the authors’ moral rights, it will certainly be interesting to see just how the courts develop this still ambiguous and novel legal concept in order to strike a fair and effective balance.

 


[1] Accessible via: https://www.youtube.com/watch?v=aPtfPtr6GgU.

[2] Accessible via: https://www.youtube.com/watch?v=NLtmauJLP-A.

[3] S.16(1) CDPA.

[4] Ibid.

[5] Ibid.

[6] Ibid., s.11(1).

[7] Ibid., s.9(1).

[8] In accordance with s.90(1) CDPA.

[9] S.16(2) CDPA.

[10] Ibid., s.16(3)(a), (emphasis added).

[11] C. Seville, ‘The Space Needed for Parody Within Copyright Law Reflections Following Deckmyn’ (2015) 27:1 National Law School of India Review 1, 2.

[12] Campbell v Acuff-Rose Inc 510 US 569 (1994), [11].

[13] [1984] FSR 210.

[14] The labels were very similar, but due to the completely different markets, namely, soft drinks and bubble bath, there was no question of trademark infringement or passing off. See P. Groves, Sourcebook on Intellectual Property Law (London, 1997), 412.

[15] Schweppes, supra 13, [5].

[16] Ibid.

[17] See also Williamson Music Ltd v The Pearson Partnership Ltd [1987] FSR 97 and Twentieth Century Fox Film Corp v Anglo-Amalgamated Film Distributors (1965) 109 SJ 107.

[18] Designers Guild v Russell William [2000] 1 WLR 2416, [5], per Lord Hoffmann.

[19] R. Deazley, ‘Copyright and Parody: Taking Backward the Gowers Review’ (2010) 73.5 Modern Law Review 785, 788. See also L. Bently & B. Sherman, Intellectual Property Law, 3rd edn. (Oxford, 2008), 186.

[20] A. Gowers, Gowers Review of Intellectual Property (2006).

[21] Ibid., 1.

[22] Ibid., 68.

[23] I. Hargreaves, Digital Opportunity: Review of Intellectual Property and Growth (2011), 6.

[24] Ibid.

[25] Ibid., 8.

[26] Ibid., 49-50.

[27] Ibid., 50.

[28] Intellectual Property Foresight Forum, Taking Forward the Gowers Review of Intellectual Property: Second Stage Consultation on Copyright Exceptions (Newport, 2009), 17.

[29] Ibid., 25.

[30] Ibid., 31.

[31] See the US Supreme Court’s analysis in Campbell, supra 12, [16]. See also Fisher v Dees 794 F.2d 432, 434 (9th Cir, 1986), [14].

[32] Statutory Instruments 2014 No. 2356.

[33] Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.

[34] Note the passive use of “may”.

[35] S.29(1) CDPA.

[36] Ibid., s.30(1). 

[37] Ibid., s.30(2), unless the work is a photograph.

[38] W.R. Cornish et. al., Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights 8th edn. (London, 2013), 491.

[39] Ibid., 491-2.

[40] [2001] EWCA Civ 1142.

[41] Ibid, [70], quoting Laddie et. al., The Modern Law of Copyright and Designs 3rd edn. (London, 2000), §20.16.

[42] [1972] 2 QB 84.

[43] Ibid., 94.

[44] Cornish, supra 38, 556.

[45] Case C-201/13.

[46] Seville, supra 11, 9.

[47] Deckmyn, supra 45, [15] and [17].

[48] Ibid., [16].

[49] Ibid., [19].

[50] Ibid., [20].

[51] Ibid., [27].

[52] Ibid., [28].

[53] Ibid., [30].

[54] Ibid., [31].

[55] Ibid., [30].

[56] Seville, supra 11, 15.

[57] Ibid., 14.

[58] G.W. Austin, ‘EU and US Perspectives on Fair Dealing for the Purpose of Parody or Satire’ (2016) 39.2 University of New South Wales Law Journal 684, 690. See also, Seville, supra 11, 2: “Parody is a concept of great fluidity, and therefore extremely difficult to delineate or define with any precision”.

[59] M.T. Sundara Rajan, Moral Rights: Principle, Practice and New Technology (Oxford, 2011), 4.

[60] Or “spiritual”, see ibid., 9.

[61] Some jurisdictions allow for the waiver of moral rights. See, for example, s.87(2) CDPA.

[62] S.77(1) CDPA.

[63] Ibid., s.80(1).

[64] Ibid., s.84(1).

[65] Ibid., s.85(1).

[66] R. Platt, ‘A Comparative Survey of Moral Rights’ (2010) 57:4 Journal of the Copyright Society of the U.S.A. 951, 958.

[67] Confetti Records v Warner Music UK Ltd [2003] EWHC 1274 (Ch), [150].

[68] M.T. Sainsbury, ‘Parody, Satire, Honour and Reputation: The Interplay Between Economic and Moral Rights’ (2007) 18 Australian Intellectual Property Journal 149, 155.

[69] Although see Delves-Broughton v House of Harlot Ltd [2012] EWPCC 29, [24], per Recorder Campbell: “I would not say that it was mutilation and I would not say that it was prejudicial to the honour or reputation of the author or director, but I am satisfied that it amounts to distortion of the photograph in question and that the treatment of the work is therefore derogatory”.

[70] Sainsbury, supra 68, 149 and 156.

[71] See Shostakovich v Twentieth Century-Fox Film Corp. 80 N.Y.S.2d 575 (N.Y. Sup. Ct. 1948), affirmed 87 N.Y.S.2d 430 (N.Y. App. Div. 1949).

[72] Art.6bis(1) Berne Convention for the Protection of Literary and Artistic Works.

[73] Deckmyn, supra 45, [31].

[74] Recital (19) InfoSoc.

[75] Rajan, supra 59, 88. See also, Cornish, supra 38, 504.

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