Parody law changes? They’re no laughing matter

As of 1 October this year, a parody law exception has been introduced, creating a new right to use copyrighted material in works of parody, caricature or pastiche. The UK courts have determined a number of elements for deciding whether the use of a copyrighted work is “fair”, including an analysis of the possible damage the copied material might have on the market for the original work and whether the amount of the material copied is both reasonable and suitable.

The government’s intention? To inspire creativity, enhance the UK comedy industry and make parodic criticism easier.

But what exactly are these changes and what are their effects?

In this article, IP Disputes lawyer Oliver Smith takes a look at what the new exception really means for both parody creators and their subjects.

While the government may have introduced exceptions to the existing law, the scope of change is limited by the EU Copyright Directive. The Directive now requires that any use be “fair dealing” according to existing legal principles. There is no statutory definition of “parody” or “fair dealing”. The European Court of Justice has recently ruled that to fall within the exception, the work must be humorous or mocking and significantly different from the original. As to the exact meaning of fair dealing, the courts have defined it as not using more of the original work than is necessary to produce the parody effect. However, parody relies on similarity for effect, so it will be interesting to see how the courts balance these two competing interests.

Fortnum & Mason v PETA

The animal welfare charity PETA has recently sought to take advantage of the new law, by launching a campaign against Fortnum & Mason’s sale of foie gras. PETA produced a website using a substantial part of the Fortnum & Mason crest logo, as well as copying the colours and style of Fortnum’s own website, while featuring articles critical of the treatment of ducks and geese in the production of foie gras. Prior to the change in the law, the use of the crest would probably have infringed Fortnum’s copyright, entitling them to obtain an injunction against PETA’s use of the symbol. Now the PETA website is sufficiently different to Fortnum’s, to comply with the fair dealing principle while still using a substantial part of Fortnum’s copyright work.

Jay Z and Alicia Keys v Goldie Lookin Chain

In applying the fair dealing test, the court will consider not only whether more of the work has been copied than was necessary but also whether the new work is in commercial competition with the original. This might occur when a popular song is extensively sampled in order to produce a new parody version. People might buy the new song because they like the sampled parts rather than, or as well as, its amusing changes. Prior to the new law, the parody of Jay Z and Alicia Keys’ song “Empire State of Mind” called “Newport State of Mind” was removed from YouTube due to action by the copyright owners. Now it might well fall within the exception, although the fact that only the lyrics are different and not the music could mean that too much of the track has actually been copied to amount to fair dealing.

Lady Gaga v Mind Candy

Although the copyright law has changed, the laws of trade marks and ‘passing off’ remain to catch out the imprudent parody artist. Back in 2011 the Moshi Monsters’ producers Mind Candy attempted to launch a character called Lady GooGoo as parody of Lady Gaga but fell foul of trade mark law. The court decided that the two names were likely to be confused, particularly in the online environment of search engines and could divert business from Lady Gaga to the Moshi Monsters’ website. In the case of trade marks, the essential test is whether the parody is likely to be confused with the original or be seen as being officially associated with the original. In Lady Gaga’s case, the court considered that customers would believe that Lady Gaga had officially approved the Lady GooGoo character.

In the example of PETA, it is unlikely that anyone reading the PETA website would believe that Fortnum had officially endorsed such a critical website. However, there may be examples of parody that use initial confusion to generate traffic to their website by, perhaps, using a confusingly similar name or web address to that of a registered trade mark. Even if the parody website is clearly not approved by the brand owner, this may still infringe the registered trade mark if it uses the brand name, unfairly, to divert traffic.

Parody creators may also wish to consider whether their work could amount to a derogatory treatment of the original work, in which case it may be an infringement of copyright due to the breach of the original artist’s moral rights. However, just because a parody is critical of the original artist, it is not necessarily a derogatory treatment if it is clear that the parody was not created by the original artist. An alteration or adaption of an artist’s work which lowers its quality or goes against the artist’s principles may be a breach of their moral rights, while in some circumstances a parody may also be defamatory of the artist whose work is being parodied.

Therefore, the changes to parody law have, by no means, eradicated all ambiguities on the subject, and thus there remains a legal minefield when producing an effective parody.