After some delay and much anticipation, the UK has introduced a new 'parody, caricature and pastiche exception' into copyright law, giving comedians (and others) new protections from copyright infringement.
The birth of the parody, caricature and pastiche exception in the UK
EU law gives member states the option to provide for an exception to a copyright owner's exclusive right to reproduce, and authorise the reproduction of their works, where a person uses the work for caricature, parody or pastiche. Until yesterday (1 October), the UK had not taken up that option.
So any person parodying, caricaturing or pastiching an existing copyright work was vulnerable to legal action for copyright infringement, where they had reproduced a substantial part of the original work. It is often necessary to take a substantial part of the original work in order to parody it (so that the audience can recognise it is a parody) and so the law was acting as a significant constraint on comedians, people creating spoof YouTube videos and others.
Campaigners for the introduction of the exception argued parodists such as Cassetteboy - an anonymous figure interviewed on BBC Radio 4 earlier this week, who is famous for online "mash-up" comedy sketches of shows including The Apprentice and Dragon's Den and for disguising his identity with a giant cassette tape on his head - should be celebrated, not censored.
As a result of action from the owners of copyright in the parodied work(s), YouTube were obliged, in the UK, to take down videos like "Newport State of Mind" (a parody of Jay Z and Alicia Keys' "Empire State of Mind", sample lyrics: "We're from the small Welsh town of Newport/Concrete jumble, nothing in order/Not far from the border/When you're in Newport/Chips, cheese curry makes you feel brand new/Washed down with a Special Brew/Repeat the word Newport, Newport, Newport"). That seemed to represent a failure of the UK to keep up with other territories, like the USA, which had long recognised the right to parody under the doctrine of 'fair use'.
The lack of an exception for parody had obvious implications for freedom of expression. But, in May 2011, Professor Ian Hargreaves delivered the verdict that the UK's failure to implement all of the copyright exceptions available under EU law was also harmful to innovation and economic growth. You can read the Hargreaves Report here.
The UK government subsequently looked to make a series of small but significant changes to better align UK copyright law with the modern digital age. Among these changes was the new 'parody, caricature and pastiche exception'; in recognition that such works were likely to involve varying degrees of use of existing copyright materials and a blanket ban on such use was hindering creativity. The new exception was finally implemented yesterday.
The parody, caricature and pastiche exception broken down
Coming into force on the 1 October 2014, the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 (the "Regulations") amended the Copyright, Designs and Patents Act 1988 (the "Act"), to add a new Section 30A as follows:
Section 30A Caricature, parody or pastiche
(1) Fair dealing with a work for the purposes of caricature parody, or pastiche does not infringe copyright in the work.
(2) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section would not infringe copyright, that term is unenforceable.
As a first step to considering whether the new exception applies, it is necessary to consider whether the new work falls into the exception at all. Is the work a parody, caricature or pastiche of an existing copyright work?
No definitions of 'parody', 'caricature' or 'pastiche' are provided in the Regulations. But looking at an explanation included in the guidance put out by the UK Government, parody imitates a work for humorous or satirical effect, commenting on the original work, its subject, author, style or some other target. A caricature portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment. Pastiche, meanwhile, is a musical or other composition made up of selections from various sources or one that imitates the style of another artist or period.
With regards to parody, the European Court of Justice has recently issued guidance in the Deckmyn v Vandersteen case (C-201/13) making clear that the essential characteristics of parody are
- to evoke an existing work while being noticeably different from it; and,
- to constitute an expression of humour or mockery.
Advertisers should note that simply inserting a brand reference into a copyright work (for example a catchy and well-known musical track) may well not meet these requirements (or the accepted definitions of caricature or pastiche for that matter).
Assuming use of a copyright work is for the purposes of caricature, parody or pastiche, it must also fall within the confines of 'fair dealing'.
The scope of the exception in reality
'Fair dealing' is a well-established doctrine in UK copyright law which has historically allowed a third party to use a copyright work, in circumstances they might not otherwise have been able to, because their use is deemed 'fair' e.g. for the purposes of non-commercial research or study; criticism or review; and/or the reporting of current events.
There is currently no statutory definition of 'fair dealing' but the question typically asked in assessing whether use of a copyright work is 'fair dealing' (and therefore lawful) is how would a fair minded and honest person have dealt with the copyright work concerned?
Use of a copyright work for the purposes of parody, caricature or pastiche is only permitted to the extent that it is "fair dealing" under the Regulations. The necessity of fair dealing significantly restricts the scope of the new exception, as fair dealing is only likely to allow a limited and moderate amount of use of the parodied work.
Using the whole of a copyright work in a 'parody, caricature or pastiche' will be unlikely to fall within the new exception. For example, guidance suggests that the use of an entire musical track on a spoof video would not be considered 'fair'. The existence of 'fair dealing' will need to be assessed on a case by case basis, by reference to the facts; degree of use; and the impression of use in each case.
Even a new 'Newport State of Mind' may run into trouble over 'fair dealing'. While the lyrics were a parody, the music was unchanged from the original copyright work. As a result, the copyright in the underlying music track and arrangement would be likely to be infringed, even if the makers could argue that they fell within the exception when it came to infringement of the lyrics, as a literary work.
When it comes to advertising, brand owners and agencies should ask themselves two key questions:
- Does my use of a copyright work for the purposes of the parody/caricature/pastiche affect the market and/or revenue streams for the copyright work concerned?
- Does the amount of copyright work being used for the purposes of the parody/caricature/pastiche go beyond a limited, moderate amount?
If the answer to either of those questions is "yes" (which it often will be, in an advertising context), then the use of the copyright work may not be 'fair dealing' and, consequently, the new parody, caricature and pastiche exception may not be available. In that case, permission from the copyright owner and, most likely, a licence fee would still be required. Otherwise, in the absence of 'fair dealing', a copyright infringement action from the owner of the work parodied, caricatured or pastiched remains likely.
Striking a fair balance and the law of libel & slander: not to be forgotten
The European Court of Justice stressed in the Deckmyn judgment that the application of the parody exception must still strike a fair balance between the interests of authors and other right holders and the freedom of expression of the person relying on the parody exception.
If a parody conveys a discriminatory message, the owners of the copyright work parodied will have a legitimate interest (in principle) in ensuring their work is not associated with that message. The moral rights of the author to object to derogatory treatment of their work remain unaffected and it will fall to the UK courts to apply the parody exception in a way which does indeed strike a fair balance between authors and rights-holders, on the one hand, and parodists, on the other.
Further, while the copyright law landscape has shifted, the law of defamation remains unchanged. A parody or caricature which defames the original artist will leave the creator open to legal action, irrespective of whether they fall within the new exception under copyright law.
Key points for advertisers and agencies
- The requirement for 'fair dealing' means that the new exception for parody, caricature and pastiche is likely to be narrower than people might assume.
- The Court of Justice of the European Union has previously stated that for a work to be a 'parody' it must (a) evoke an existing work while being noticeably different from it and (b) constitute an expression of humour or mockery. It's unlikely that simply adding a brand reference into a copyright work and then using it in an advert will meet this definition.
- Guidance emphasises that use of more than a limited, moderate amount of a copyright work is unlikely to be 'fair dealing' - using a whole copyright work for a parody (e.g. the whole of a music track in relation to a spoof video) will likely still be copyright infringement if the permission of the copyright owner is not sought.
- Given that a key revenue stream for e.g. music rights-holders is likely to be the licensing of their works for use in relation to advertising, it may well be difficult to argue that the use of a parody in that context is 'fair dealing'.
- Advertisers and agencies, rubbing their hands at the thought of exploiting the new parody exception to use copyright works to promote their brands, without the usual licence fees, should stop and take legal advice. In an advertising context, it may well be that the new exception does not change things as much as they might think.