Not another fair dealing article: Parodies of copyrighted works

5 minute read
08 July 2024

In April, Ryan Gosling hit the SNL stage to perform a song about letting go of his role as Ken. The performance, which spoofed Taylor Swift's hit "All Too Well," received the pop star's seal of approval.

But what happens if a parody isn't met with enthusiasm from the original creator? There's no time like the present to revisit when a parody may be exempt from copyright infringement.

From copyright to Saturday Night (Live)

Under section 29 of the Copyright Act, "fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright." For fair dealing to apply, the work must be used for one of the allowable purposes and the use must be fair.

Based on the current state of Canadian case law, a parody contains two basic elements:

  1. The evocation of an existing work while exhibiting noticeable differences.
  2. The expression of mockery or humour.

A parody needs to be clearly distinguishable from the original – that is, to be a parody, one must be able to recognize it as a spoof. Confusion as to its nature will work against the ability to establish that a parody amounts to fair dealing.

For example, Michael Scott clearly got one thing right when The Office character wrote and directed his own spy action film, Threat Level Midnight. Anyone who's seen it would be able to recognize that secret agent Michael Scarn (the lead character created to resemble 007) is not James Bond.

Further, a user need not explicitly identify the source of the work being parodied, nor does the expression of mockery or humour have to be directed at the exact thing being parodied. A comedic nod to a general genre or trope involving secret agents, for instance, would be classified as a parody.

Assuming your work is considered a parody, the question then turns to whether the use is fair. In determining whether a work can fall under fair dealing, a court can consider:

  • The purpose of the dealing (e.g. intent for humour (more on this below); generally involves a consideration as to whether the work is for commercial purposes).
  • The character of the dealing (e.g. how widely the work is distributed).
  • The amount of the dealing (e.g. the proportion of the original work being copied).
  • Alternatives to the dealing (e.g. whether or not there are other options available for use in the work which do not cause confusion between the original vs. parody).
  • The nature of the work (e.g. whether the work will remain unpublished).
  • The effect of the dealing on the work (e.g. whether and how the parody will harm the originator's reputation; generally involves a consideration as to how the new work will affect the market value of the original work).

Whether a particular use of copyrighted work amounts to fair dealing for the purpose of parody involves an objective assessment of the defendant's real purpose or motive in using it and, in particular, whether the parody is clearly intended to be humorous, as opposed to defamatory. As stated in United Airlines, Inc v Cooperstock, "if extended too far, what may be designed in jest as parody may simply become defamatory."

So, good news for Michael Scott: he's likely out of the woods with his in-office premiere of Threat Level Midnight.

No confusion: The (trade)mark of a good parody

If you're planning on using a parody mark (e.g. CHEWY VUITON in spoof of LOUIS VUITTON) that causes confusion with or creates a linkage to an established brand in the minds of Canadians, you may want to work on your comedic timing.

In the world of trademarks, there is no parody exception to trademark infringement, passing off, or a depreciation of goodwill. Established principles continue to apply in each case. In short, any attempt to trade off the goodwill or reputation of another brand falls in the danger zone, regardless of your intent for humour.

So, while you're creating your new mashup track of "Gangnam Style" and "Gangsta's Paradise," best practice suggests that you should ensure distinctions are made not only between your parody song and the original works themselves, but also with respect to any trademarks or branding materials used in association with the track to avoid any confusion or complaint from PSY and Coolio's estate.   

No joke: Infringement is serious business

While the statutory protection afforded to parodies can offer some sense of comfort, one should proceed with caution. It is rumoured that even the master of parody Weird Al Yankovic never relies on the parody exception when creating his masterpieces.

The safest approach? Seek permission from the original creator/trademark owner or license the rights to use the copyright/trademark.

Assessing IP issues in the context of parodies involves challenging fact-based questions. When in doubt, save yourself from a parodic catastrophe down the road and seek legal advice.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.