Intellectual Property Law

INTELLECTUAL PROPERTY LAW LW556

Dissertation

PARODY IN COPYRIGHT LAW

Itse Gerrits Lecturer/Seminar leader: Alan Story 23 March 2005 ABSTRACT

Parody has proved to be a difficult matter in copyright law, especially in the United Kingdom in recent years. The reason for this is that an effective parody must rely heavily on the original work in order to be recognised by the audience. Parody serves a useful purpose in society. But despite this importance and the fact that copying of parts of the original work is inevitable, the courts are reluctant to give parody special treatment in copyright infringement procedures and use the ‘substantial part test’. The fair use provisions in America on the other hand seem to give parodists more chance and the European Directive 2001/29 on copyright allows Member States to provide special rules on parody. Some countries made use of this and the United Kingdom should also reconsider its laws. The right to freedom of expression supports this view. Parody needs special treatment and has to be, under circumstances, a defence against an alleged infringement of copyright. The circumstances which are important are the purpose of the parody, the transformative use, inner distance and the intention of humour and criticism.

Word Count: 5139

2 CONTENTS

Abstract 1 Contents 2

Parody in Copyright law

Introduction 3

What is parody and why is it a problem? 3

The treatment of parody by the courts 5 Glyn v Weston Feature Film Company 5 Joy Music Ltd v Sunday Pictorial Newspapers (1920) Ltd 6 Schweppes Ltd and Others v Wellingtons Ltd 7 Williamson Music Ltd v The Pearson Partnership Ltd 7 Analysis of the cases 8 United States: Campbell v Acuff-Rose Music Inc 9 Analysis 10

EU Copyright Directive 11

Parody and freedom of expression 12

What should the treatment of parody be like? 13

Bibliography 17

3 PARODY IN COPYRIGHT LAW

Introduction

Parody has proven to be a difficult matter in copyright law, especially in the United Kingdom in recent years. This is understandable because for a parody to be successful it is necessary to take a part of the source work, otherwise the public will not understand it. When, however, this part forms a substantial part of the source, the parodist infringes copyright. It is easy to understand the problem: the parodist has to conjure up the source work, but he cannot take a substantial part. Case law shows that courts, in the absence of legislation in this field, seem to disagree on the appropriate treatment of parody. The aim of this dissertation is to show that parody needs special treatment in copyright law. I will start by explaining what is parody and why it is important. Then I will analyse case law on parody and copyright to show the developments which have taken place, not only in the United Kingdom, but also in the United States. The next step is to consider whether the United Kingdom’s fair dealing provisions or the United States’ fair use provisions effectively address the problem. I will go on to discuss the freedom of expression difficulties which may arise in parody cases. I will also briefly comment on the law in other European countries, because the European Directive on Copyright 2001/29 gives room for special provisions and some countries made use of this. And in conclusion I will give my view on what should be the treatment of parody in copyright law.

What is parody and why is it a problem?

Almost every work on parody goes back to the origins of the word in. The word ‘parody’ comes from parôidia (παρωδια), deriving from ‘para’ and ‘odê’. ‘Para’ means beside, alongside or near. ‘Odê’ means song. The usual translation therefore is ‘a song sung alongside another’ and implies comparison between the parody and its original. But as this translation suggests neutral comparison, there are scientists who are of the opinion that ‘para’ also bears a more adversative, aggressive meaning of

4 counter and against. With this connotation parody comes much closer to satire or burlesque, because ridicule, distortion and mockery are essential ingredients.1 The unsatisfying conclusion is that many of the cultural scientists agree that there cannot be a single definition of parody.2 However, it is possible to give some characteristics:3 - parody requires that the public knows the source work; - the source work may be art works in every form; - parody involves both closeness to and distance from its source material, because the source work is not uncritically devoted but transformed in – often – a witty way and it differs in this way from plagiarism; - parody is capable of simultaneously showing disapproval and respect, criticism and sympathy, parasitism and creativity; - in some cases, the source work is the target, in others it is merely a weapon; - often laughter if provoked, because of the dislocation of the source work. On the other hand, parody may cause anger or shock. Even though the cultural scientists disagree upon the exact meaning of the word, a workable legal definition is to be found in the judgment of Judge Nelson in the Acuff- Rose case: ‘a parody is a work that transforms all or a significant part of an original work of authorship into a derivative work by distorting it or closely imitating it, for comic ... effect, in a manner such that both the original work of authorship and the independent effort of the parodist are recognizable.’4

What then is the importance of parody? In the first place, parody is a form of entertainment. Although it may cause shock or anger, generally, the public likes parodies. But a good parody does more than just entertaining. The parodist tries to express himself by using the source work. He can criticise the source work itself (‘target parody’), or he can express his views on more general things; society, certain contemporary ideas, life-styles, politics and so on (‘weapon parody’). Hutcheon calls parody ‘one of the major forms of self-reflexivity in twentieth-century art forms, making the intersection of creation and re-creation, of invention and critique.’5

1 C. Rütz, ‘Parody: A Missed Opportunity?’ (2004) 3 I.P.Q. 284. 2 Hess, Urheberrechtsprobleme der Parodie (Baden-Baden, 1993). 3 C. Rütz, ‘Parody: A Missed Opportunity?’ (2004) 3 I.P.Q. 284. 4 Acuff-Rose Music Inc v Campbell (6th Cir. 1992) 972 F.2d 1429. 5 L. Hutcheon, A Theory of Parody (1985).

5 I am of the opinion that parody is a very important phenomenon nowadays, especially in this world that is getting faster and faster; a parody in a single cartoon or song can say more than thousand words and replies in this way to the ‘need for speed’ in our internet and mobile phones society.

The question is what aspect of parody makes it so difficult to reconcile with copyright law. Copyright protects the expression of ideas.6 The owner of the right can issue copies of the work and he can allow others to do that, usually after payment of a certain amount of money. The parodist, however, takes a part of the source work without the consent of the copyright holder and alters or dislocates this part. The difficulty with this is that the parodist himself does a lot of original work and it can be said that he created a new original work. The law seems to have difficulties with the fact that the parodist creates a new work. In Spence’s words: ‘... lawyers have tended to assume that ... the activity of ‘creators’ does not depend upon existing work and that the activity of ‘users’ is rarely creative. But the parodist is both a ‘creator’ and a ‘user’.’7 For a copyright to be infringed the owner of the right has to show that the alleged infringer has taken a ‘substantial part’ of the original work. Parody is imitative and allusive by nature and to be effective, it has to conjure up the source work. In other words, the parodist has to balance between conjuring up the source work by taking parts and not taking that much as constituting a substantial part. I will now consider how the courts have dealt with parody cases.

The treatment of parody by the courts

Glyn v Weston Feature Film Company8 Glyn was the authoress of a novel called ‘Three Weeks’. The story is about a young Englishman and a mysterious lady who meat each other in Lucerne and enjoy a three week liaison. According to Younger J the story is very hackneyed.9 The defendants made a film called ‘Pimple’s Three Weeks (without the Option)’, which is ‘frankly

6 For example: Designers Guild Ltd v Russell Williams (Textiles) Ltd (2000) 1 WLR 2416, HL. 7 Spence, ‘Intellectual Property and the Problem of Parody’ L.Q.R. 1998, 114(Oct), 594 – 620. 8 Glyn v Weston Feature Film Company (1916) 1 Ch. 261. 9 He illustrates this fairly wittily: ‘no wine can pass her lips which is not either of the deepest red or the richest gold; the roses she wears are matched in colour only by the red of her lips...’ etc.

6 farcical and ... vulgar to an almost inconceivable degree’.10 The film was obviously based on the book. However, Younger J held that there are numerous aspects of the film which have no counterpart in the book and vice versa. Consequently, he held that there is no infringement of the plaintiff’s copyright in the novel. The importance of the case for our purpose lies in his ‘obiter dictum’ in which he addresses the defendant’s view that ‘if you find one work which is a serious work and another which is a burlesque of it, the latter is not an infringement of the copyright in the former’. Younger J partly agrees with this submission: ‘... no infringement of the plaintiff’s rights take place where a defendant has bestowed such mental labour upon what he has taken and has subjected it to such revision and alteration as to produce an original result.’ This statement seems to suggest that parody is entitled to special treatment, because a parodist usually ‘bestows’ much labour upon his new work.

Joy Music Ltd v Sunday Pictorial Newspapers (1920) Ltd11 Joy Music Ltd were the owners of the copyright in the words and music of a song entitled ‘Rock-a-Billy’. The strength of the song was said to be in its (creative) chorus: ‘Rock-a-Billy, Rock-a-Billy, Rock-a-Billy, Rock / Rock-a-Billy, Rock-a- Billy, Rock-a-Billy, Rock / Rock-a-Billy, Rock-a-Billy, Rock-a-Billy, Rock / Rock-a- Billy, Rock-a-Billy, Rock, Rock.’ The defendants published an article in their newspaper, after H.R.H. Prince Philip had been in the news for several of his activities, including gliding and accidents with his car. The article contained the words of a song with the following chorus: ‘Rock-a- Philip, Rock-a-Philip, Rock-a-Philip, Rock / Never mind the fogies that you shock, shock, shock / Everybody’s got to learn to take a knock / So Rock-a-Philip, Rock-a- Philip, Rock, Rock.’ The rest of the lyrics were different from the source work. Joy Music brought an action for infringement of their copyright. McNair J discussed various tests for determining whether the parody was infringing and concluded: ‘it would be proper to emphasise to them [i e the jury] this test which Younger J suggested as to whether the defendant had bestowed such mental labour on what he had taken and subjected it to such revision and alteration as to produce an original

10 To use the words of Younger J. 11 Joy Music Ltd v Sunday Pictorial Newspapers (1920) Ltd (1960) 2 Q.B. 60.

7 work.’ He then held that the defendant had changed the lyrics sufficiently enough not to take a substantial part and not to infringe the copyright. This case and the case of Glyn v Weston Feature Film Company suggest that parody should have a special position in so far as the parodist alters and revises sufficiently the elements he takes from the source work. However, the subsequent cases seem to leave this perspective.

Schweppes Ltd and Others v Wellingtons Ltd12 The plaintiffs were the owners of the copyright in the labels on their bottles; the well known yellow Schweppes label. The defendant sold bottles of roughly the same shape ‘bearing two yellow labels which have a very close resemblance indeed to the corresponding labels on the plaintiffs’ bottle’. The only difference was that ‘Schweppes’ had been changed into ‘Schlurppes’. The defendant conceded they had taken a substantial part, but they contended that the bottle was ‘in the nature of parody’. They relied on McNair J’s judgment in Joy Music and argued that they did not infringe the plaintiffs’ copyright because they bestowed enough labour. However, Falconer J did not follow Joy Music: ‘the test every time in my judgment is, as the statute makes perfectly plain: Has there been a reproduction in the defendant’s work of a substantial part of the plaintiff’s work?’ Accordingly, he held that the ‘Schlurppes’ label was infringing.

Williamson Music Ltd v The Pearson Partnership Ltd13 The plaintiff owned the copyright in the famous song ‘There is Nothin’ Like a Dame’, originating from the play ‘South Pacific’. The defendants advertised a service of express coaches between London and other places in the United Kingdom. In their advertising they made use of a song which resembled ‘There is Nothin’ Like a Dame’. Judge Paul Baker Q.C. considered the previous authorities on parody and concluded without further comments that the relevant test is the ‘substantial part test’ as put forward by Falconer J in the Schweppes case.

12 Schweppes Ltd and Others v Wellingtons Ltd (1984) F.S.R. 210. 13 Williamson Music Ltd v The Pearson Partnership Ltd (1987) F.S.R. 210.

8 Analysis of the cases With the last decision it seems that the substantial part test has prevailed over the special treatment. As indicated before, parody often has to use the most distinguishing features of the original and will therefore infringe copyright law almost automatically, although some authors are convinced there is still room for the courts to be sympathetic to parody when applying the substantial part test.14 Is there an explanation for the fact that there are four conflicting first instance decisions? The reason could lie in the fact that the courts have a large discretion in this field, because there is no legislation. As a result it is very well possible that other considerations than legal ones have played their roles. I will illustrate this for each of the discussed cases. In Glyn v Weston the book was in the words of Younger J ‘of a tendency so grossly immoral’ that he just did not want to give a work like this copyright protection. That could be a reason why he ‘invented’ the rule that a parody which is a new work does not infringe. In Joy Music McNair J found no difficulties in applying Glyn v Weston, because the result was satisfactory; Sunday Pictorial had only produced an article with the words of a song that resembled Rock-A-Billy. This did not threaten the popularity of the original song in any way and it was in no way competitive. In Schweppes v Wellingtons, however, Falconer J was reluctant to follow the previous cases because it was obvious that ‘Schlurppes’ wanted to free ride on the reputation of ‘Schweppes’. Contrary to the facts in Joy Music, ‘Schlurppes’ had only commercial interests and therefore it was not desirable to allow this kind of parody. The same can be said about Williamson Music; the advertising agency wanted to free ride on the fame of ‘There is Nothin’ Like a Dame’, and they did not have any other intentions than to use it for commercial purposes. The court did not want to allow this kind of parody and held it to be infringing.

Analysing these cases in this way, I feel there is no fixed rule about parody at all. The relevant test seems to depend on the desirable solution in a particular situation. By coincidence the last two cases had to take a restrictive approach, but I do not think that consequently the approach in the first two cases is not good law anymore.

14 Laddie, Prescott & Vitoria, The Modern Law of Copyright and Designs (3rd edn, 2000).

9 Furthermore, the last two judgments were not delivered after a full trial;15 in Schweppes the plaintiff asked for summary judgment and in Williamson they sought an interlocutory injunction. Unfortunately, the House of Lords did not have the opportunity to express its views on this matter. Therefore, it is interesting to consider the situation in the United States, because here the Supreme Court did get the chance to give its opinion.

United States: Campbell v Acuff-Rose Music Inc16 This case is about a parody of the well known Roy Orbison song ‘Oh Pretty Woman’. Whereas the original song was intended for country music audience, 2 Live Crew made a rap song called ‘Pretty Woman’. It was obvious that 2 Live Crew made use of the most catching phrases of Roy Orbison’s song. The question was whether this parody could pass the four factor test for fair use,17 which takes into account: - the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit purposes; - the nature of the copyrighted work; - the amount and substantiality of the original used in proportion to the whole;18 - the effect of the use on the potential market for, or value of, the copyright work. The Supreme Court dealt with the questions systematically: Ad 1: the Supreme Court held that parody ‘like other comment or criticism, may claim fair use’ and furthermore that ‘the more transformative the new work, the less will be the significance of other factors, like commercialism’. The 2 Live Crew song criticized and commented on the original, the fact that it was for a commercial purpose could not be decisive. Ad 2: this factor is not very helpful in parody cases because ‘parodies almost invariably copy publicly known, expressive work’. Ad 3: parody presents a difficult case in this factor. Parody should at least take enough to conjure up the original. Even if the ‘heart’ is taken, there can still be fair use, because ‘it is the heart at which parody takes aim’. So the question is what did

15 R. Burrell, ‘Reining in Copyright Law: Is Fair Use the Answer?’, I.P.Q. 2001 No 4, 361-388. 16 Campbell v Acuff-Rose Music Inc 114 S. Ct. 1164 US, 1994. 17 Copyright Act of 1976, 17 U.S.C. 107. 18 This factor resembles the English substantial part test.

10 the parodist do besides taking the heart? It was held that 2 Live Crew took the heart but ‘thereafter departed markedly from the Orbison lyrics for its own ends’. Ad 4: usually parody will not affect the market for the original in a cognizable way, that is, by acting as a substitute. But it may affect the derivative market. In the present case that would be the rap market; the fact that there is a rap song of ‘Oh Pretty Woman’ means that the copyright owners cannot license it to another rap group anymore, because there will be no market for it anymore. But in the present case, neither of the parties had any evidence on this point. To conclude: the Supreme Court held that the 2 Live Crew song made fair use of the original.

Analysis In my view this approach is much better than the approach in the United Kingdom because it takes into account more factors than just the substantial part en is therefore less rigid. However, some problems remain. The Supreme Court limits parody to a ridiculing distortion and criticism and fair use can only be gained by a parody if it targets the original work. This is also illustrated by the case of Rogers v Koons19 in which case a sculpture did not comment on the original and was not therefore a parody. The argument for this is also made by Posner20 and goes as follows: a parodist who wants to criticize contemporary customs or values can do that in another way. There is no necessity to use the source work. I would like to join Rütz in his attack on this view. He argues that often a particular work will be the most appropriate for spreading the parodist’s message. He also attacks Posner’s point that copyright owners would normally license ‘weapon parody’, because the work is not criticized. Rütz points out that ‘if the target is a set of values cherished by the copyright holder or his loyal audience or readers, he certainly would not allow weapon parodies using his works’.21

UK courts so far have not had to deal with fair dealing defences under s. 30 CDPA 1988, which states that ‘fair dealing with a work for the purpose of criticism or review … does not infringe any copyright’. What exactly constitutes fair dealing is unsure 19 Rogers v Koons 960 F. 2d 301 (2d Cir. 1992); 22 U.S.P.Q. 2d 1492 (1992). 20 R.A. Posner, ‘When is parody fair use?’ Journal of Legal Studies 1992 No 21, 67-78. 21 C. Rütz, ‘Parody: A Missed Opportunity?’ (2004) 3 I.P.Q. 284.

11 and according to Lord Denning impossible to define. ‘After all is said and done, it must be a matter of impression.’22 A practical problem for s. 30 to apply is that it requires that the parody should identify the source work. Not many parodies will do so, although very obvious and explicit parodies may satisfy this requirement. The difference between the UK approach and the US approach in fair dealing and fair use respectively is that the UK provides for fair dealing in a number of specific cases, whereas in the US there is only one general provision, applying to miscellaneous situations. In general, the US fair use approach allows a much more balanced consideration of the difficulties in parody than the UK with its substantial part test.

EU Copyright Directive

In 2001 the EU came with Directive 2001/29 on the harmonization of certain aspects of copyright and related rights in the information society.23 It allows Member States to ‘provide for exceptions or limitations to the rights in the case of use for the purpose of caricature, parody or pastiche’. It may be clear from the aforesaid that the United Kingdom did not make use of this. It is interesting to consider the situation in other European countries which did make use of this or already had special provisions. Specific defences are contained in the French and Spanish copyright statutes.24 The French Intellectual Property Code states that an author must not prohibit ‘la parodie, le pastiche et la caricature, compte tenu des lois du genre’. Interestingly, there is no strict differentiation required between parody, pastiche and caricature and there is no definition of any of those. This permits flexibility and the courts have shown a liberal attitude towards parody. A restriction given by the courts is that the parody must not create any risk of confusion with the source work. If the parody injures or degrades the original author, moral rights can be invoked. The same applies to Spain: there should be no risk of confusion and no harm to the original author, otherwise the parody does not fall within the specific defence to infringement.25

22 Hubbard and Another v Vosper and Another (1972) 2 Q.B. 84. 23 (2001) O.J. L167/10. 24 C. Rütz, ‘Parody: A Missed Opportunity?’ (2004) 3 I.P.Q. 284. 25 L. Gimeno, ‘Parody of songs: a Spanish case and an international perspective’, Ent. L.R. 1997, 8(1), 18-22.

12 In Germany a system of fair use is operating: ‘freie Benutzung’.26 The provision can be summarized as follows: parody usually enjoys the privilege of fair use where it has enough ‘inner distance’ to the old work and is recognizable as such. Inner distance means that the new work should appear to be independent. In Germany this means that the parody should be a target parody, although the critical and humorous elements of the parody do not have to target the original work itself, but can also target the subject and topic displayed by the original work.27

Parody and freedom of expression

Another difficulty parody presents in copyright is the problem of freedom of expression. At first sight copyright may seem at odds with the principle of free speech because it restrains individuals from expressing themselves in the way they like.28 However, copyright does not protect ideas, but only the expression of ideas. It can therefore be argued that speech is still free because copyright does not cover the content of an expression. See for example the case of Associated Newspapers v News Group Newspapers: ‘A person is not in any way prohibited from saying exactly what he likes … if he cannot publish it in the precise words which somebody else has used, which is the essence of copyright. Freedom of speech is interfered with when someone is not allowed to say what is the truth.’29 However, as Burrell points out, this view ignores that ‘virtually all textual and visual material will be clothed in copyright’ which means that it becomes almost impossible to support an argument by taking a part from another work.30 Spence accepts that there are two situations in which freedom of speech and intellectual property are incompatible.31 The first is ‘the situation in which it is necessary, in order to comment upon a particular text or its creator, to draw from that text itself.’ This aspect is recognised in s. 30(1) about fair dealing by means of criticism or review, but as indicated before, there will be few parodies that can rely on fair dealing because they usually do not refer to the original author. The second is ‘the situation in which a text protected by an intellectual property right has become

26 § 24(1) Urheberrechtsgesetz. 27 C. Rütz, ‘Parody: A Missed Opportunity?’ (2004) 3 I.P.Q. 284. 28 Spence, ‘Intellectual Property and the Problem of Parody’ L.Q.R. 1998, 114(Oct), 594 – 620. 29 Associated Newspapers v News Group Newspapers (1986) R.P.C. 515,517. 30 R. Burrell, ‘Reining in Copyright Law: Is Fair Use the Answer?’, I.P.Q. 2001 No 4, 361-388. 31 Spence, ‘Intellectual Property and the Problem of Parody’ L.Q.R. 1998, 114(Oct), 594 – 620.

13 shorthand for a range of meanings for which no adequate alternative means of expression exists.’ Parody is a problem because it covers both situations: the parodist takes from a copyrighted work to criticize, using the part taken as shorthand for a range of values that the parody ironically undercuts. In the first situation the freedom of speech should prevail over the copyright because the taking of a part of the copyrighted work is only ancillary to the purpose of criticism. In other words, the substantial part test should not be used here because it does not take into account the right to freedom of expression. Spence makes a distinction here between target parodies and weapon parodies, contending that this only applies to target parodies, but I do not see why. Both in target parody and in weapon parody, the taking of a (substantial) part is ancillary to the purpose of criticism. Another argument for abolishing the substantial part test related to the freedom of speech is the fact that since the Human Rights Act came into force, existing statutes should be interpreted in a way compatible with the right of free speech. In Ashdown v Telegraph32 the Court of Appeal accepted that copyright could act as an illegitimate restriction on freedom of expression in certain circumstances. In such circumstances the general public interest defence of s. 171(3) would be available. The Court of Appeal departed here from the earlier decision in Hyde Park Residence v Yelland33 in which it held that there is no general public interest defence in the United Kingdom. Another interesting aspect of the case is that the Court admitted that in some circumstances the form of expression is equally important as the information it conveys. This means that the possibility for the parodist to put his message in another – not infringing – way cannot be an argument. This is especially important for weapon parody because the usual argument against protection of this type of parody is that there is no necessity to use the copyrighted work.

What should the treatment of parody be like?

It may be clear from the aforesaid that in my view the substantial part test should be abolished. It is far too rigid and it does not recognise the nature of parody, in that a

32 Ashdown v Telegraph (2001) 4 All E.R. 666. 33 Hyde Park Residence v Yelland (2001) 1 Ch.143.

14 parodist has to take a substantial part in order to conjure up the original. But having said this, it is very difficult to find the right approach. The reasons for this are that there is no single definition of parody, that there is weapon parody and target parody, that the approach should not be too rigid as to make parody virtually impossible but it should also not be too liberal as that would seriously undermine the position of the copyright holder and may be a disincentive for potential creators.

One suggested solution is the set up of a compulsory licensing system. The parodist should apply for a licence. The argument is that ‘when a parodist offers a royalty to the copyright holder that adequately compensates him, refusals to license should not be sanctioned as they are based on non-economic motives not protected by copyright law.’34 However, it is said that licensed parodies cannot be real parodies: ‘How can a parody criticise the establishment if the establishment says ‘right on’?’35 A more convincing argument against a compulsory licence system is that the freedom of expression aspects are not dealt with in a satisfactory way: the fact that the parodist has to pay and the unpredictability of the amount, may restrict him in view of the financial burden placed on him.36

What about the fair use approach? This approach offers several advantages; there are different factors which play a role and this allows a much more balanced view on the difficulties of parodies. A disadvantage is the uncertainty that the case-by-case treatment brings in. The US approach in their fair use provisions has been criticized because it only applied to target parody and only to parody which is ridiculing distortion and criticizing. However, there are several factors in the fair use treatment that should definitely play a role in the treatment of parody: - the purpose and character of the use; when it is merely for commercial purposes there should be less protection; - the amount taken from the original; the more the parodist takes, the more he has to add elements himself. And the amount he cán take depends on the first factor; for commercial purposes is less allowed;

34 C. Rütz, ‘Parody: A Missed Opportunity?’ (2004) 3 I.P.Q. 284. 35 Yonover, ‘Artistic Parody: The precarious balance: Moral Rights, Parody and Fair Use’, 14 Cardozo Arts and Entertainment Law Journal 79. 36 C. Rütz, ‘Parody: A Missed Opportunity?’ (2004) 3 I.P.Q. 284.

15 - the effect of the use on the potential (derivative) market; when a parody is competitive with the original, less is allowed. When the parody alters the (chances on the) derivative market, less is allowed.

Rütz proposes a parody defence to be introduced into the CDPA as follows: ‘Parody does not infringe any copyright in the work provided that the transformative use outweighs any commercial motive and that the parody criticises the copyrighted work or its subject and surrounding. A parody will infringe copyright if it lacks sufficient inner distance from the copyrighted work, especially if it copies significantly more than is adequate to conjure up the original work in the interest of humour and criticism.’ This is in many ways a very attractive approach. Five elements can be distinguished, each of which I will discuss. (1) The transformative use has to outweigh any commercial motive. This should mean that the first purpose of the parody should be to do something original, humorous, ironic, critical or whatever but not something merely for commercial purposes. This suggests that the parody in Schweppes would not be able to claim protection under this defence because here the primary goal of the parody was to make money out of it; they wanted to free ride on the reputation of Schweppes and had no intention to criticize Schweppes or society. They just wanted to sell more bottles. I totally agree with this first element. (2) The parody should criticise the original work or its subject and surrounding. It is not completely clear for me whether this covers weapon parody. Weapon parody criticises society or contemporary values and ideas, but those are not necessarily part of the ‘subject and surroundings’ of the original. In my view there should be no distinction in the level of protection for weapon parody and target parody. I repeat the reasons I mentioned before: (i) often a particular work will be the most appropriate for spreading the parodist’s message. (ii) It is not true that copyright owners would normally license weapon parodies, because if it attacks a set of values cherished by the copyright holder or his fans, he certainly would not allow parodies attacking this. In general,

16 copyright owners do not like to be parodied. (iii) Free speech considerations lead to the conclusion that both types of parody should be protected. (3) A parody must have sufficient inner distance from the original. This comes from the German approach of ‘freie Benutzung’, the equivalent of fair use. It means that ‘the new work has to have, compared to the borrowed personal characteristics of the old work, an inner distance large enough to consider the new work as being independent because of its inherent own creativity’.37 In other words, the parodist has to add something of his own creativity to make the new work something really new. Again, I agree with this element, because it prevents it from becoming too easy to fall within the protected category of parody; the parodist has to put in a sufficient amount of his own skill and labour. (4) The parodist should not copy significantly more than necessary to conjure up the original work. I do not agree with the word ‘significantly’. I would just say that the parodist should not copy more than necessary to conjure up the original work. In the end, the parody defence is an exception and should therefore not be construed to broadly; copying more than necessary to conjure up the original should not be allowed. (5) The parody should be in the interest of humour and criticism. I agree with this proposition, provided that the judge will not have to consider whether it really is funny or critical or not. The decisive factor should be the intention of the parodist.

Taking into account my comments on Rütz’s proposal and my earlier findings, I would come to the following parody defence:38

‘Parody does not infringe any copyright in the work provided that the transformative use outweighs any commercial motive and that the parody criticises either the copyrighted work or its subject and surroundings, or contemporary customs and values. A parody will infringe copyright if it lacks sufficient inner distance from the copyright protected work, especially if it copies (…) more than is adequate to conjure up the original work in the interest of the parodist’s intention of humour or criticism.’

37 C. Rütz, ‘Parody: A Missed Opportunity?’ (2004) 3 I.P.Q. 284. 38 Words in italics show the differences with Rütz’s proposal.

17 Bibliography

Books and Articles

 R. Burrell, ‘Reining in Copyright Law: Is Fair Use the Answer?’, I.P.Q. 2001 No 4, 361-388.

 J. Davis, Intellectual Property Law (Butterworths Core Text Series) (2nd edn, 2003).

 L. Gimeno, ‘Parody of songs: a Spanish case and an international perspective’, Ent. L.R. 1997, 8(1), 18-22.

 Hess, Urheberrechtsprobleme der Parodie (Baden-Baden, 1993).

 L. Hutcheon, A Theory of Parody (1985).

 Laddie, Prescott & Vitoria, The Modern Law of Copyright and Designs (3rd edn, 2000).

 R.A. Posner, ‘When is parody fair use?’ Journal of Legal Studies 1992 No 21, 67-78.

 C. Rütz, ‘Parody: A Missed Opportunity?’ (2004) 3 I.P.Q. 284.

18  Spence, ‘Intellectual Property and the Problem of Parody’ L.Q.R. 1998, 114(Oct), 594-620.

 Yonover, ‘Artistic Parody: The precarious balance: Moral Rights, Parody and Fair Use’, 14 Cardozo Arts and Entertainment Law Journal 79.

Acuff-Rose Music Inc v Campbell (6th Cir. 1992) 972 F.2d 1429.

Ashdown v Telegraph (2001) 4 All E.R. 666.

Associated Newspapers v News Group Newspapers (1986) R.P.C. 515,517.

Campbell v Acuff-Rose Music Inc 114 S. Ct. 1164 US, 1994.

Designers Guild Ltd v Russell Williams (Textiles) Ltd (2000) 1 WLR 2416, HL.

Glyn v Weston Feature Film Company (1916) 1 Ch. 261.

Hubbard and Another v Vosper and Another (1972) 2 Q.B. 84.

Hyde Park Residence v Yelland (2001) 1 Ch.143.

Joy Music Ltd v Sunday Pictorial Newspapers (1920) Ltd (1960) 2 Q.B. 60.

Rogers v Koons 960 F. 2d 301 (2d Cir. 1992); 22 U.S.P.Q. 2d 1492 (1992).

Schweppes Ltd and Others v Wellingtons Ltd (1984) F.S.R. 210.

Williamson Music Ltd v The Pearson Partnership Ltd (1987) F.S.R. 210.