On the horizon: a parody exception to copyright?

Jag Bahra on why allowing parodies of protected works is an important step towards a more balanced and sensible law of copyright.

Image: Weird Al Yankovic. Photo by watsonsinelgin CC BY-NC-SA 2.0

This morning Business Secretary Vince Cable announced how the Government proposes to respond to the Hargreaves Review of Intellectual Property.  He announced support for all 10 recommendations in the Hargreaves Review, including for 'exceptions' such as the long overdue legalisation of format shifting and moves to make data-mining for scientific research legal. We may also at last be given an exception to copyright for works of parody.  Such an exception was recommended in both the Hargreaves (2011) and Gowers (2006) reviews. This article takes a look at the case for parody and some international examples of where such an exception is already in place. 

It is little wonder that parody is such a controversial copyright subject.  A parody mocks an existing film, song, book or other work – by borrowing its most distinctive and recognisable parts.  On the face of it this would be at odds with copyright law, which stops others from making any copy or adaptation of a protected work- or any substantial part of it. 

Under the current law we have a doctrine of ‘fair dealing’, which is limited to the purposes of criticism and review.  Any use must include sufficient acknowledgment of the original.  This is clearly not suitable for parodical works. 

Interestingly, in the early 20th Century the Courts were willing to allow some room for parodies.  For example see Glyn v Weston Films (1916) and Joy Music v Sunday Pictorial Papers (1920).  However in more recent cases the Courts have gone against this precedent, asserting the only issue to consider is whether a substantial amount of the original work has been copied. 

And herein lies the fundamental problem for parodists.  Any parody must necessarily appropriate and transform significant portions of the original work in order for it to make sense.  As the copying of any substantial part (i.e. anything that is not de minimis) of a work is an infringement of copyright, it is difficult to see how any parody will not automatically be infringing.  

The case for allowing parodies is strong.  Parody is often the most effective way to criticise.  There has been recent controversy surrounding a video produced by Greenpeace, which parodied Volkswagen’s popular ‘little Darth Vader’ advert.  Greenpeace’s video uses the same theme and imagery, but instead frames Volkswagen as the evil Galactic Empire, intent on destroying Earth with its VW-branded Death Star.  The motivation behind this is that Volkswagen is opposing a piece of European legislation imposing limits on CO2 emissions and that the company’s claims of ‘eco-friendliness’ are a dishonest front. 

In this case it is clear that the parody had been made purely for the purposes of legitimate criticism.  Of course, it aimed to bring Volkswagen’s activities into question in the minds of the public, but this is perfectly lawful - no actionable harm was caused.  No consumers would become confused and think that the video was actually produced by Volkswagen.  The market for the original advert was not harmed.  Greenpeace did not aim to gain financially from their video.  All of these factors point towards the inevitable conclusion that parody should be allowed to exist within the copyright framework.

Greenpeace’s video was removed from Youtube after a generic copyright complaint from Lucasfilm, but has since returned.  Thankfully the matter comes under US jurisdiction and is therefore protected under fair use, as Greenpeace asserted.  The Fair Use doctrine is enshrined in the US Copyright Act, and is further-reaching than our own fair dealing provisions.  It states that “the fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching… scholarship, or research, is not an infringement of copyright.”  When considering whether a use is ‘fair’ the Court must consider the following four statutory factors:

(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.

It is important to note the wording of this provision - this is a non-exhaustive list, and leaves a wide scope for potentially fair uses, including parody.  The open-ended nature of fair use requires a case-by-case approach, examined by the Courts, rather than a statutory, bright-line test.  This approach was exemplified in the now legendary case of Campbell v Acuff-Rose Music (1994), which concerned the notorious hip hop outfit 2 Live Crew and their explicit take on Roy Orbison’s soppy ballad “Pretty Woman”.  The Supreme Court ruled that parody constituted fair use, recognising that the taking of the central elements of the original work was not only permissible, but essential in works of parody.

Parody exceptions exist in a number of European jurisdictions, including France, Germany, Spain and Sweden – although each operates slightly differently.  French law allows exceptions for parody, pastiche and caricature, “taking into account the usage of the genre”.  In order to qualify, the parody must have been intended to be humorous in nature and there must be no risk of confusion with the original work.  A parody has even been held to defeat both the author’s right to make adaptations and the author’s moral right to integrity (the case concerned well-known cartoon characters depicted in obscene situations.  In Germany and Sweden parody exceptions have been carved out by the Courts rather than in statute, but exist nonetheless.

The Australian Copyright Amendment Act 2006 introduced a fair use exception for the purposes of parody and satire, along with format-shifting and time-shifting.  When determining whether the use is fair, the Courts must consider all the circumstances of the case including the nature of the work; the nature of the use; and any effect on the commercial market for the original work.

In 2008 the New Zealand Government launched a consultation into whether a parody exception should be introduced.  This was unfortunately shelved due to a general election but another review is scheduled for 2013 and it is thought that the issue will return then. 

There is, frankly, not much of an argument to be made against allowing a parody exception to copyright.  By allowing parodies to exist, copyright owners do not actually suffer.  It would be ridiculous to suggest that authors, musicians and filmmakers are somehow worse off in jurisdictions which allow parody, for fear that someone might decide to change the lyrics of one of their songs to fulfil a different purpose and upload it to Youtube.  

Parodies, essentially by definition, do not compete with the original work in the market but co-exist, often appealing to a different demographic.  There are countless examples of parody creating works of value – take for example Weird Al Yankovic, who has made a successful career for himself by parodying the works of others to great effect.  Parody may even sometimes add value to the original work. For example, rapper Chamilionaire actually attributes the success of his song “Ridin’ Dirty” to Yankovic’s parody “White and Nerdy”.  What parody does is mock or criticise constructively – the law should be facilitating these legitimate aims, not preventing them.  

Some may be concerned that allowing parody would be a dangerous move that opens the floodgates for bogus works that free-ride on original works of merit, purporting to be parodies, satires or caricature.  However it is important to remember that this will be a specific exception for parody, not a US-style, non-exhaustive doctrine of fair use.  Indeed, Professor Hargreaves concluded explicitly that a fair use doctrine should not be adopted in the UK.  Any exception would need to be carefully framed such that relevant factors are taken into account.

Some may claim that we simply “don’t need” a parody exception, as if it is really not that important.  This is a cynical and perhaps simplistic view.  As already discussed, parody is an effective method of criticism.  In the age of online activism and digital media campaigning it will become crucial.  Allowing corporations to silence criticism using intellectual property laws is simply not on.  The Greenpeace vs Volkswagen saga is just one example of parody being put to work in this way, and I suspect over the coming years many more examples will appear. 

Allowing parody of protected works will be an important step towards a more balanced and sensible law of copyright.  To sit back and do nothing now will be to deny artists, creators and activists alike a powerful tool of communication.  Nothing happened after the Gowers Review in 2006 - let’s not miss out on this opportunity again.

Jag Bahra is a law graduate, civil liberties & copyleft enthusiast.

Consumer Focus have produced a briefing on parody here.