The parody exception to copyright law is going to be fun
The proposed change may, if we’re lucky, prompt a courtroom farce or two
Counsel for the defence, an Irish courtroom, sometime in the future: “I submit to you, your honour, that the ‘work’ you see before you is a parody, with the intention to amuse, and that rather than unreasonably prejudicing the interests of the copyright owner, it has in fact served to increase awareness of the original work.”
Judge: “Aren’t parodies supposed to be funny?”
Counsel for the defence: “The phenomenon of the Twitter ‘parody account’ would indicate otherwise, your honour.”
Judge: “But how would Hitler react in this situation?”
Try not to munch on your popcorn too loudly, but some glorious farces may be on the legal horizon – in a good way. One of the Copyright Review Committee’s proposed changes to copyright legislation is that works of “caricature, parody, pastiche and satire” should no longer be deemed to be an infringement of the copyright owner’s rights. Such genres are deliberately not defined, bringing to mind the spectre of the courts mulling the finer points of what constitutes “caricature, parody, pastiche and satire” and what’s just a plain old rip-off.
This is not to say that I’m against the introduction of this particular exception. Indeed, quite apart from the fun that might be gleaned from men in wigs deconstructing the legal status of the internet’s finest spoofs, mash-ups and puppet re-enactments, it seems to me that the health of the average democracy is improved when the laws governing satire, parody and caricature are kept as liberal as possible.
But being in favour of the “parody exception” isn’t the same as believing that everything that purports to be a satire, parody, caricature or pastiche should always trump the moral rights of copyright holders – nor, to be fair, does that seem to be the proposal. The exception is set to be subject to “fair dealing” limitations, which means the use of a copyrighted work should not “unreasonably prejudice the interests” of the rights-owner.
So, in a dispute, how do the courts recognise an unreasonable prejudice of the interests of rights-owners when they see one?
It could be argued, for example, that the Noughties’ “Hitler reacts” parody meme was so ubiquitous that it coloured and trivialised the reputation of the rather serious source film, Downfall. Constantin Films, Downfall’s producer, certainly went through a phase where it wanted the internet to be rid of Hitler’s all-too-flexible fury.
The courts may be more willing to translate unreasonable prejudice to the interests of rights-owners as the extent to which a parody has caused commercial harm. But damage, either economic or artistic, may be difficult for the parodied to prove. In the UK, where the government has backed a proposed parody exception, a study commissioned by the Intellectual Property Office helpfully found no evidence that music video parodies on YouTube had hurt rights-holders’ interests in either commercial or reputational terms.
This is where arguments in favour of the parody exception look a little loose. First of all, as dismayed visual artists have pointed out, it ignores the fact that the exception will affect various creative sectors differently. Secondly, how many of those videos were “parodies” and how many were just cheap derivatives, designed for cash-in purposes? The intention should matter. Thirdly, the existence of a parody is often a reflection of the original’s already unstoppable success, but it doesn’t follow that the act of parodying has no inherent commercial consequences.
Authors and performers of work have the right “to object to any distortion, mutilation or other modification” of their work that would “prejudice his or her reputation” – a right that will now have to be balanced against the proposed parody exception.
Ultimately, such disputes may come down to the extent to which the work is directly used. This week’s parody-of-choice is Sesame Street’s adaptation of Showtime’s Homeland into Homelamb, in which suspected enemy agent Nicholas Ba-a-a-a-a-rody looks uncannily like a wolf among sheep. No clips of the original work are incorporated (and the US has a more relaxed approach to copyright anyway).
On the other hand, Newport (Ymerodraeth State of Mind), a Welsh parody of the Jay-Z and Alicia Keys track Empire State of Mind that was removed from YouTube in 2010 after a copyright claim by EMI, did use all of the musical track in its 3½ hilarious minutes. The lyrics were, ahem, transformed – much for the better, in my view. (It’s back online.) Sadly, whether or not you, or the judge, are a fan of the original won’t have much to do with it – or at least it shouldn’t.