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Parody In The UK: No Laughing Matter

Parody In The UK: No Laughing Matter

In Treehouse of Horror V, an episode of The Simpsons which aired almost exactly a decade ago, Homer Simpson went insane within the confines of Mr Burns’ mansion after Mr Burns removed the cable TV and beer in a (futile) attempt to spurn Homer into working hard as his caretaker.  Without his vices, Homer is a lost soul.  Yes,  “no TV and no beer make Homer go crazy”.  All fans of Jack Nicholson will immediately have recognised that the episode was The Simpsons’ attempt at a parody of Stanley Kubrick’s The Shining

Parody is more prevalent now than ever before; parodies of music videos and songs, in particular, regularly go viral on YouTube.  Newport State of Mind, a Parody of Jay-Z and Alicia Keys' Empire State of Mind, had over 2.5 million views on YouTube before it was taken down (ostensibly for copyright infringement). 

UK copyright law has historically given a low priority to humour as against the rights of the copyright holder – it’s often said by the courts that what’s worth copying is worth protecting.  Despite facing significant pressure from the EU since 2001 and despite the protestations of two UK Government-sanctioned reviews of intellectual property law in 2006 and 2011, the UK Government has declined to introduce a parody exception to copyright until now.

The UK Government finally decided to move with the times and to amend the Copyright, Designs and Patents Act 1988 (“CDPA”) with effect from 1 October 2014, in certain circumstances, it is no longer an infringement of copyright to use a protected work for the purposes of caricature, parody or pastiche (parody being the most commonly engaged use), provided that such use can be described as “fair dealing”.  Although this overdue development is a welcome one, there remain a number of issues, only some of which are covered here, to be resolved.

First, the legislation does not attempt to define what constitutes a parody, caricature or pastiche.  Perhaps unimaginatively, the recent decision of the European Court of Justice (“ECJ”) in Deckmyn v Vandersteen suggests that everyday language offers a good indicator but the limits of these terms are in desperate need of fleshing out by the domestic courts.

Secondly, even where it is accepted that a work is a parody, the exception can only be engaged if the use made of the protected work can be said to be fair.  It is likely that the key factor in determining whether or not use is fair will be the extent of the use.  Simply put, if the amount of the work copied is more than was necessary in the circumstances then the use will probably not be fair.  Credible, independent reports suggest that eight factors may be relevant but the UK government disagrees; until case law is created the position will remain unclear.

Lastly, copyright authors have very unclear moral rights which enable them to prevent derogatory treatment of their work.  The ECJ made clear in Deckmyn that the public interest in parody has to be balanced with the author’s moral rights but it is far from clear how this will be achieved in practice.

It is important to appreciate that the implications of this change in the law are not limited to those individuals who are principally engaged in the creative arts.  The amendments to the CDPA include provisions which apply retrospectively and which are designed to prevent copyright holders from overriding the Parody exception contractually.  Given the indeterminate extent of the parody exception, copyright owners should  take legal advice on the extent to which acts prohibited under existing contracts remain enforceable.

It remains to be seen whether this softening in the law will result in more satirical content similar to Treehouse of Horror V and Newport State of Mind being produced in the UK.  Whilst we certainly hope that it will, we equally hope that greater certainty for both parodists and rights holders is provided quickly by the courts.  At present, prospective parodists may be put off by the uncertainty in the law and rights holders may be nervous about the impact this new exception could have on their rights (and revenue streams).  As such, no one is laughing just yet.

Robert MacVicar
Trainee Solicitor