Development of Parody within Intellectual Property Law

The development of parody within intellectual property law has been fragmented and arguably without sufficient philosophical or jurisprudential considerations.  In this essay I will establish a broad definition of parody within intellectual property law and highlight the potential areas of difficulty in defining what constitutes parody.  To give parody special consideration within intellectual property law would involve allowing parodists to infringe on the copyright held by the authors of authorial works.  I will argue that parody has inherent public policy and economic benefits, as well as promoting freedom of expression which should be fundamentally protected and will show that these considerations outweigh any possible impact this may have on copyright.  I will then consider what form these special considerations should take and will conclude that the creation of a statutory provision to include an element of flexibility is the most appropriate protection for parody.

What is parody?

As outlined by Spence, ‘no stable understanding of the term “parody” exists’[1].  In absence of statutory provisions defining the nature of parody within intellectual law, some academics, including Jongsma[2], rely on the dictionary definition of parody as ‘an imitation …  with deliberate exaggeration for comic effect’[3].  Personally, I do not believe this is a sufficiently detailed definition for the complex nature of parody, as it fails to comment on the transformation of the authorial work to a derivative work.  In my view, the most complete definition of parody comes from the case of Deckmyn v Vandersteen, which states ‘that the essential characteristics of parody are, first, to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery’.[4]  This definition can be criticised, however, for failing to clarify whether humorous intention would be a sufficient expression or whether a successful humorous effect is required[5].  A humorous “effect” would make the definition of parody narrow and may cause difficulties when applying the subjective test as it would place too great an emphasis on judicial discretion in deciding whether the humorous effect was successful.[6]

Further, I would argue that an assumption of humorous intent or effect is not necessary in all cases to constitute a parody, for example, in the case of Laugh it Off Promotions CC v South African Breweries International Finance [7], a parody was found.  Arguably, there was little, if any, comic effect intended in the parody, rather the intention was to shock the audience.  This case raises a further question about the distinction between parody and satire, which the definition in Deckmyn fails to distinguish[8].  Rütz states that ‘satire does not depend on imitation of existing materials; it can imitate society’s views’[9] and it is this distinction which has led to a restrictive approach to satire by the Courts.  It has been argued that as satire comments on society’s views, there should be no need to use the authorial work as a vessel for this[10], as seen in Rogers v Koons[11], where it was found that there was no parody as the derivative work did not comment directly on the authorial work, rather on society as a whole and therefore it would be classified as satire.

The significant overlap between parody and satire render the current classifications insufficient as they are treated as two separate copyright issues.  There are two key types of parody; ‘target parody’ which criticises the authorial work, and ‘weapon parody’ which criticises things outside of the authorial work; for example, politics or society.  Whilst target parody clearly fits the definition of parody outlined above, weapon parody appears to simultaneously satisfy both the criteria for parody and for satire.  Attempting to separate types of work based on these criteria is arbitrary and does not reflect the fact that in many cases, the derivative work will satisfy the test for both parody and satire.  As parody cases do not occur in a legal vacuum, it is illogical to attempt to treat them as such and it is imperative that when deciding on this issue, the wider social context is incorporated.  There is little guidance as to which definition of parody will be favoured by the Courts, allowing far too much judicial discretion and uncertainty. 

Due to the nature of the essay, it is not possible for me to further investigate the definition of parody and the role of satire and therefore I will continue with a broad understanding of parody.  I will follow the decision in Deckmyn[12] that parody should be understood according to its everyday meaning.

Special consideration

The aim of copyright in intellectual property is to protect the expression of ideas and free speech.  Copyright law gives individuals certain rights over their creations, including the right to consent to the use by third parties.  Parody, however, involves a transformation of the authorial work without the consent of the copyright holder, often using a substantial amount of the source work.  Granting parody special consideration would allow parody to infringe on copyrighted works providing they meet the necessary criteria.  In order to establish if special consideration should be afforded to parody, I will need to decide whether the benefits of parody outweigh the potential infringement on copyright and individual freedom of expression.  

Arguments against parody

1. Availability of alternative methods of expression

One of the key arguments posited in opposition to parody is the availability of alternative methods of expression.  It is argued that whilst freedom of expression is a fundamental right, this does not extend so far as to automatically allow copyright infringement as a form of expression, particularly when there are other methods of expression available.  I would argue that this argument is flawed as there are indeed circumstances under which parody may be the most effective means of expressing an opinion[13], particularly in the case of target parody where the work itself is commented on.  Further, it is not clear who should be the arbiter on which is the most effective method of expression; presumably this would fall to the judiciary which would give far too much discretion and lead to uncertainty.  It would strain freedom of expression considerably if authors were restricted in how they could respond to other authorial works.  This debate was raised in the case of Ashdown v Telegraph Group Ltd, where the Court of Appeal discussed whether the reproduction of an extract of a memorandum violated copyright laws:

in most circumstances, the principle of freedom of expression will be sufficiently protected if there is a right to publish information and ideas set out in another’s literary work, without copying the very words which that person has employed to convey the information or express the ideas ….. however, circumstances can arise in which freedom of expression will only be fully effective if an individual is permitted to reproduce the very words spoken by another.[14]

This decision goes even further by suggesting that on occasions it is justified to directly copy a work, so this should extend to taking a ‘substantial’ amount for the purposes of parody.

Posner argues that aside from target parodies, in the case of weapon parodies, the author would likely grant a licence for the parody[15].  Rutz[16], I believe, has a strong rebuttal to this point.  If an author disagrees with the message coming from the weapon parody, it is unlikely they will authorise it.  Further, the concept of needing the author of the works to licence the parody, target or weapon, undermines the core premise of parody; to mock society.  It is difficult to fully comment on society, particularly in a negative manner, if you have first had to seek permission before publishing.  Rütz rightly explains that, ‘if the target is a set of values cherished by the copyright holder or his loyal audience or readers, he certainly would not allow weapon parodies using his works’.[17]  Whilst this would allow parodies in certain circumstances where the author agrees with the message, it would place a large restriction on parodies which are negative in their commentary.

It is important to note that freedom of expression extends to all citizens, so covers authors and their audiences as well as parodists and their audiences. To therefore claim that parody breaches freedom of expression for authors and their audiences does nothing to remedy that fact that by preventing parody it is harming the freedom of expression granted to parodists and their audiences.  Creating a parody does not limit the freedom of expression of the author and in fact could potentially strengthen it by increasing the audience and furthering the dissemination of the knowledge. It could be argued that we should only allow parody in cases where it is the only effective method of expressing the idea.  However, I believe this is too narrow an interpretation of parody which would be far too difficult to judge due to parodies subjective nature and would lead to both legal uncertainty an increase the number of litigants.  I would argue that is parody should be allowed so long as it is an effective method of expressing the idea.

• Parody and fundamental rights

The European Union has exercised caution with regards to allowing parody as an exception to copyright. In the Copyright Directive 2001, the EU granted Member States the right to ‘provide for exceptions or limitations to the rights in the case of use for the purpose of caricature, parody or pastiche’[18].  I believe this section reflects how different nations will view parody based on societal norms and how the law needs to be reflect this.  The case of Deckmyn[19] expanded on the directive by stating that when considering a parody defence, Courts must identify any competing fundamental rights involved in the case and ensure there is not too great of an infringement on them.  This goes further than the fundamental right to freedom of expression outlined above and incorporates and prohibits discriminatory messages, or those concerning race, religion or gender[20].   I believe it is possible to remedy these competing fundamental rights with parody by the introduction of a new statutory provision which outlines that a parody will fail if it associates the author with a discriminatory message, or one concerning race, religion or gender.

A further criticism of parody claims that parody can attempt to deceive the audience about the true identity of the author.  This can be seen in the case of Clark v Associated Newspapers Ltd[21], where it was found that the disclaimer on the work was not sufficient to show the article was a work of parody rather than the actual diary of the author and that a large percentage of readers could be tricked into misattributing the work to the author rather than the parodist.  As described by Spence, ‘the author of even the most obvious parody cannot assume that his work is [not] a misrepresentation under the law of passing off.’[22]  However, I find this concern to be irrelevant, as I do not believe parody aims to deceive.  By its very nature parody requires the audience to recognise the original work and the transformative nature to understand the meaning.  If a parody merely mimicked the original without adding anything further, it would not be classified as a parody, rather a direct copy.  In the Clark[23] case, I believe the case would have succeeded with a clearer acknowledgement of the author.  Further, specific protections can be afforded to similar cases through the law of passing off without the need to undermine the special consideration afforded to parody.

• Parody is already self regulating

Deazley[24] argues that parody is already prevalent throughout society and is largely a self-governing area of law and therefore adding special consideration is unnecessary and may cause further confusion and lead to an increase in litigation.  I would argue that there is no suggestion that affording special consideration to parody would lead to an increase in litigation, as agreed by Lord Phillips in the case of Ashdown, ‘we do not foresee this leading to a flood of litigation.’[25]  In the rare case where freedom of expression and copyright conflict, Courts will have to make an assessment on a case by case basis.  In fact, I would argue the opposite, affording special regulation would add greater legal certainty as the area now is comprised primarily of fragmented case law, which may ultimately reduce the amount of litigation in this area.

Arguments for parody

1. Economic benefits

South Africa has justified parody as a defence to copyright on an economic basis.  In Laugh it Off[26], it was found that the parody would not substantially affect the economic value of the original authorial work and therefore it was permitted.  This assumes that the primary motivation of copyright law is to protect the authors right to the economic value of their product.  Whilst I do not agree this is the sole aim of copyright law, I do believe it presents a strong argument in favour of parody.  If the author is not losing out economically from the creation of the parody, and does not infringe on the fundamental rights outlined above, it does not seem to be a violation of copyright. 

This point was also raised in the US case of Campbell v Acuff-Rose Music[27], where it was argued that the parody had infringed on the market of the original authorial work.  This point was disputed by the Courts who held that there was no competition between the original and the parody.  This is because a parody necessarily aims at a different audience to the original. A parody would only infringe on the economic rights of the original author if the parody served as a substitution for the original work.  In the Campbell[28] case, it was found that the parody would have little impact on the market for the original work but may have an impact on the derivative market, in this case specifically rap music.  I do not believe an impact on an industry unrelated to the original authorial works is enough reason for to impose restriction on parody and would only serve to restrict the autonomy of consumers.  

I would argue that parodies  could actually be of benefit to both the original market and the derivative market, particularly if the parody should receive notoriety, by promoting the consumption of the both the original work, and alternatives to the derivative work.  This argument would receive wide utilitarian support as parody would bring about the most economic benefits for the most amount of people whilst increasing choice for the consumer.  It is also important to mention that Courts should be reluctant to find that a parody has an impact on the potential market of the original work, as it is crucial for individuals to have the right to compete and criticize, even if through the form of a parody.  For example, a negative book review may serve to kill the market of the original book, but this is justified as the purpose is for comment and criticism and this actually improves consumer knowledge and choice.

• Public policy justifications

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.

• Parody as a new authorial work

There is an intrinsic value in parody which is often overlooked in this debate.  Whilst undoubtedly the original authorial work is important and should be afforded copyright protection due to the work that has gone into its creation, a parody also requires work on the part of the parodist in order to create the new transformative work.  The debate is often framed with the author being a hardworking creator and the parodist unjustly infringing on the work, however, this is often inaccurate.  As outlined by Spence, ‘… lawyers have tended to assume that … the activity of “creators” does not depend upon existing work and that the activity of “users” is rarely creative. But the parodist is both a “creator” and a “user”’.[29]  We should not undermine the work done by parodists simply because they draw inspiration from another source.

How should we afford parody special consideration?

From the arguments above, I believe there is a compelling reason to afford parody special consideration within intellectual property law.  Whilst there are a number of potential downsides to a very broad adoption of parody, I believe these can be mitigated through statutory provision.

In the US, the special consideration afforded to parody is outlined in section 107 of the Copyright Act 1976 adopting a four stage approach to dealing with cases:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.[30]

This was dealt with in the case of Campbell[31], in which the Court considered and criticised the outline.  The Court stated the when deciding on the first factor, consideration should be given to the transformative nature of the works, affording greater protection to the most transformative works.  This would remedy any fears about parody allowing for too much direct copying, however I do not believe this adds much to the third point raised in section 107[32].  The second factor adds little to parody cases as outlined by the Courts, ‘since parodies almost invariably copy publicly known, expressive works’.[33]  The final factor goes some way to remedying any economic arguments against parody – in most cases the parody will not serve as a substitute for the original authorial work and therefore this section will not be invoked, however in the rare circumstance where the parody acts as a substitute, this would grant the judiciary the power to protect the original author’s rights.  For example, this clause could be invoked in a case like Ashdown[34], where the parody would act as a substitute.

France has adopted a very flexible attitude towards parody which falls under the category of, ‘parody, pastiche and caricature’[35] however no definitions for these terms are provided.  France instead leaves much of this area open to judicial discretion on a case-by-case basis. 

I would propose that a parody defence should be introduced into copyright law by statute.  It should state that parody are permitted so long as there is a transformative nature to the work which would be identifiable for the intended audience of the parody and the parody expresses either humour, mockery or shock value at the authorial work itself or something external.  Further, a parody should not be permitted if it would serve as a direct substitute for the authorial work so to substantially impact the market or value of the original authorial work.  This definition would allow a relatively broad understanding of parody and would allow enough judicial discretion to decide on a case by case basis which is necessary for this area of law.  I believe this would be a fair trade off between legal certainty and flexibility without the potential to substantially increase the amount of litigation.

Conclusion

To conclude, I believe parody deserves special consideration within intellectual property law.  A parody exception to copyright is needed in order to promote freedom of expression for the parodist and their audience.  As well as providing a public good through humour and social commentary, parody can provide economic benefits to the parodist and original author.  Whilst there are concerns over parody imitating the original author and discriminatory messages being attributed to the author, both these issues are easily mitigated through statutory provision regarding passing off and fundamental rights.  If a parody defence is created in statute, a certain degree of judicial discretion is necessary, however this is limited and promotes a fair balance between certainty and flexibility.  The current legislation worldwide does not adequately protect parodists and far too much is left to judicial discretion, however this is not an argument against affording parody special consideration, rather these mistakes can help shape more robust legislation to help promote parody and freedom of expression.

Bibliography

Primary Sources

• Ashdown v Telegraph Group Ltd [2001] EWCA Civ 1142
• Campbell v Acuff-Rose Music 510 US 569 (1994)
• Deckmyn v Vandersteen Case C-201/13 (Grand Chamber 2014)
• Clark v Associated Newspapers Ltd [1998] 1 All ER 959
• Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416, [2001] FSR 11
• Elsmere Music v National Broadcasting Co 482 F Supp 741 (SDNY 1980)
• Glyn v Weston Feature Film Co [1916] 1 Ch 261
• Harper & Row Publishers Inc v Nation Enterprises 471 US 539 (1985)         
• Hubbard v Vosper [1972] 2 QB 84
• Hyde Park Residence Ltd v Yelland [2001] Ch 143
• Infopaq International A/SI v Danske Dagblades Forening EU:C:2009:465, [2009] ECDR 16
• Joy Music Ltd v Sunday Pictorial Newspapers (1920) Ltd [1960] 2 QB 60
• Laugh it Off Promotions CC v South African Breweries International Finance Bv Case CCT 42/04 (South African Constitutional Court 2005)
• Leibovitz v Paramount Pictures Corporation 137 F3d 109 (1998)
• Mattel Inc v Pitt 229 F Supp 2d 315 (SDNY 2002)
• Mattel Inc v Walking Mountain Productions 353 F3d 792 (2003)
• Rogers v Koons 960 F2d 301 (1992)
• Schweppes Ltd v Wellingtons Ltd [1984] FSR 210
• Twentieth Century Fox Film Corp v Anglo-Amalgamated Film Distributors (1965) 109 SJ 107
• Williamson Music Ltd v Pearson Partnership Ltd [1987] FSR 97

Legislation

• Copyright Act 1968 (Australia)
• Copyright Amendment Act 2006 (Australia)
• Copyright, Designs and Patents Act 1988
• Council Directive 2001/29 of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L 167/10
• Copyright Act 1976 (United States)

Secondary Sources

• Aplin T and Davis J, Intellectual Property Law: Texts, Cases and Materials (3rd edn, OUP 2017)
• Bently L and Sherman B, Intellectual Property Law (4^th edn, OUP 2014)
• Coombe RJ, The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law (Duke University Press 1998)
• Davis J, Intellectual Property Law (4^th edn, OUP 2012)
• Deazley R, Taking Backwards the Gowers Review (2010) 73 MLR 785
• Gaines JM, Contested Culture: The Image, The Voice and the Law (University of North Carolina Press 1991) ch 1-4
• Gowers Review of Intellectual Property (HM Treasury, December 2006)
• Jacob R, Parody and IP claims: A Defence? in Dreyfuss R and Ginsburg J (eds), Intellectual property at the edge: the contested contours of IP (Cambridge University Press 2014) ch 20
• Jongsma D, Parody After Deckmyn – A Comparative Overview of the Approach to Parody Under Copyright Law in Belgium, France, Germany and The Netherlands (2017) 48 IIC 652
• Keller B and Tushnet R, Even More Parodic than the Real Thing: Parody Lawsuits Revisited (2004) 94 TMR 979
• Lessig L, Free Culture: How big media uses technology and the law to lock down culture and control creativity (The Penguin Press 2004) ch 10
• McCausland S, Protecting “a fine tradition of satire”: the new fair dealing exception for parody or satire in the Australian Copyright Act [2007] EIPR 287
• McCutcheon J, The new defence of parody or satire under Australian copyright law [2008] IPQ 163
• Posner R, When Is Parody Fair Use? [1992] JLS 67
• Rosati E, Just a laughing matter? Why the decision in Deckmyn is broader than parody (2015) 52 CML Rev 511
• Rutz C, Parody: a missed opportunity? [2004] IPQ 284
• Spence M, Intellectual Property and the Problem of Parody [1998] LQR 594

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[1] Michael Spence, Intellectual Property and the Problem of Parody [1998] LQR 594, 594

[2] Daniel Jongsma, Parody After Deckmyn – A Comparative Overview of the Approach to Parody Under Copyright Law in Belgium, France, Germany and The Netherlands (2017) 48 IIC 652, 653

[3] Concise Oxford English Dictionary (2002)

[4] Case C-201/13 (Grand Chamber 2014) para 20

[5] Eleonora Rosati, Just a laughing matter? Why the decision in Deckmyn is broader than parody (2015) 52 CML Rev 511, 517

[6] There is a further question here about whether the Courts should view the humorous effect as the reasonable man or as a member of the intended audience.

[7] Bv Case CCT 42/04 (South African Constitutional Court 2005)

[8] Deckmyn (n 4)

[9] Christian Rutz, Parody: a missed opportunity? [2004] IPQ 284, 289

[10] Richard Posner, When Is Parody Fair Use? [1992] JLS 67

[11] 960 F2d 301 (1992)

[12] Deckmyn (n 4)

[13] Rutz (n 9)

[14] [2001] EWCA Civ 1142 para 39

[15] Posner (n 10)

[16] Rütz, ‘Parody: A Missed Opportunity?’ (2004) 3 I.P.Q. 284

[17] ibid  284

[18] Council Directive 2001/29 [2001] OJ L 167/10  Art 5(3)(k)

[19] Deckmyn (n 4)

[20] Rosati (n 5)

[21] [1998] 1 All ER 959

[22] Spence (n 1) 599

[23] Clark (n 21)

[24] Ronan Deazley, Taking Backwards the Gowers Review (2010) 73 MLR 785

[25] Ashdown (n 14) para 45

[26] Laugh It Off (n 7)

[27] 510 US 569 (1994)

[28] ibid

[29] Spence (n 1) 594

[30] Copyright Act 1976 (United States) s 107

[31] Campbell (n 27)

[32] Copyright Act 1976 (n 30)

[33] Campbell (n 27) 586

[34] Ashdown (n 14)

[35] Council Directive (n 18)