A laughing matter?

Under recent legislation, some parodies, caricatures and pastiches may now be created without infringing copyright in the works on which they are based.

The Copyright and Rights in Performances (Quotations and Parody) Regulations 2014 added new s 30A and sched 2, para 2A into the Copyright, Designs and Patents Act 1988, with effect from 1 October 2014. Section 30A provides that “fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work”, and sched 2, para 2A is in similar terms. What do these requirements mean?

“Caricature, parody or pastiche”

The new UK legislation does not define “caricature”, “parody” or “pastiche”. However, the Copyright Directive (2001/29/EC) harmonises copyright law throughout the EU, and the CJEU recently defined “parody” in Deckmyn v WPG Uitgevers Belgie (Case C-201/13). This case involved a parody of the well-known Belgian comic book, Suske en Wiske. The copyright owner objected on various grounds, including that the parody was racially discriminatory.

The CJEU defined the essential characteristics of a parody as:

• a work which evokes an existing work, while being noticeably different to it;
• which constitutes an expression of humour or mockery.

The court did not define “caricature” and “pastiche”. However, in its non-binding guidance on the new exceptions, Exceptions to copyright: Guidance for creators and copyright owners (October 2014), the Intellectual Property Office (“IPO”) states: “Pastiche is [a] musical or other composition made up of selections from various sources or one that imitates the style of another artist or period. 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.”

“Fair dealing”

The caricature, parody or pastiche will only benefit from the exception if the use made of the original work amounts to “fair dealing”.

The concept of fair dealing derives from the Berne Convention three-step test, adopted by article 5(5) of the directive. This provides that fair dealing exceptions only apply in (i) special cases; (ii) which do not conflict with a normal exploitation of the work; and (iii) which do not unreasonably prejudice the legitimate interests of the rights-holder.

Article 5(5) was not specifically discussed in Deckmyn. However, the CJEU noted that the exception had to be applied in a way which balanced the rights and interests of the copyright owner against those of the users of the copyright work. The reference to the legitimate interest of the rights-holder mirrors step (iii) of the test.

In Deckmyn, that required weighing up the copyright owner’s rights against the parody-creator’s right to free speech. If the national court finds that the parody is racially discriminatory, the copyright owner will have a legitimate interest in not being associated with such a message, and so the exception may not apply.

Discussing fair dealing, the IPO guidance notes that the parody exception will apply to use of “limited amounts of another’s material”, and gives the examples of (i) a comedian using a few lines from a film or song for a parody sketch; (ii) a cartoonist referencing a well known artwork for a caricature; and (iii) an artist using small fragments from films for a larger pastiche artwork.

The difficulty with this is that the exception is intended to permit use which would otherwise be infringing. To infringe a copyright work, it is necessary to reproduce the whole, or a substantial part of it. Making such limited uses might not infringe in the first place.

In addition, Deckmyn notes the essence of a parody is that it evokes an existing work. The original work must be referenced to the extent necessary for it to be recognised. Making only the minor uses referred to in the IPO guidance may not be enough to achieve such an effect.

Further, a parodied work may have more than one copyright subsisting in it. For example, a song’s lyrics are protected by literary copyright, but the music is protected by music copyright. A parody version of a song may use completely different lyrics but a very similar melody, thus potentially infringing the music copyright. Such use may not benefit from the parody exception, if it falls foul of either the three-step test or the Deckmyn requirement of being noticeably different from the original work.

The last laugh?

Although the new exception will provide some comfort to makers of parodies, caricatures and pastiches, it is clear that there is still uncertainty around its precise scope. If the exception is interpreted narrowly, rights-holders may yet have the last laugh.

Susan Snedden, director, IP & Technology, Maclay Murray & Spens LLP