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Durham Law Review Volume IV Part 1 October 2018 [2018] D.L.R 1 Durham Law Review [2018] Parody After Deckmyn: A New (port) State of Mind? Uday Duggal 2 Durham Law Review [2018] Table of Contents INTRODUCTION .............................................................................................................. 3 CHAPTER 1 ........................................................................................................................ 7 The Road to the Parody Exception (Meets a Deckmyn Roadblock) ............................................... 7 Background ............................................................................................................................................ 7 The New Exception Poses Two Big Questions ......................................................................................... 9 Deckmyn Attempts a Definition ............................................................................................................ 14 CHAPTER 2 ...................................................................................................................... 18 The Parameters of Parody Pose Problems .................................................................................... 18 Humour: Intent or Effect? ..................................................................................................................... 18 Mockery – Target & Weapon Parody .................................................................................................... 22 Why Humour and Mockery? ................................................................................................................ 26 ‘Sufficiently Distinct’, Fair Dealing & Licenses ....................................................................................... 32 CHAPTER 3 ...................................................................................................................... 36 Moral Rights and Parody .................................................................................................... 36 Parody and Non-Commercial Grounds ................................................................................................. 36 Moral Rights in the UK ........................................................................................................................ 39 Integrity ................................................................................................................................................ 41 False Attribution ................................................................................................................................... 45 A Way Forward? ................................................................................................................................... 46 CONCLUSION ................................................................................................................. 48 BIBLIOGRAPHY .............................................................................................................. 49 3 Durham Law Review [2018] INTRODUCTION n 2009, musicians Jay-Z and Alicia Keys released the song ‘Empire State of Mind’, topping music charts worldwide.1 Peppered with affectionate references to city I landmarks and New Yorkers, a critic deemed the song ‘an epic paean to New York’.2 Its chorus: ‘In New York, concrete jungle where dreams are made of (sic), there’s nothin’ you can’t do’.3 Several months later, UK filmmaker M-J Delaney released a parody of the song on Youtube, ‘Newport (Ymerodraeth State of Mind)’. The parody replaced the original’s po-faced eulogising of New York with references to Welsh celebrities and the city of Newport (the rewritten chorus: ‘In Newport, concrete jumble, nothing in order… chips, cheese and curry make you feel brand new’).4 The parody went ‘viral’, attracting over two million views until 10th August 2010, when YouTube removed the parody pursuant to a copyright claim.5 The episode highlighted an intriguing lacuna in the UK’s copyright regime, one effectively leaving Newport’s creators with no recourse. The issue was that the UK – so often associated culturally with wit, satire and irony; a nation purportedly bearing sarcasm and self-deprecation 1 Acharts, ‘Jay-Z Chart Stats’ <https://acharts.co/song/49581> accessed 1 April 2018. 2 James Harkin, ‘Jay-Z’s hymn to modernity’ (The Guardian, 11 August 2010) <www.theguardian.com/commentisfree/cifamerica/2010/aug/11/jay-z-hymn-to- modernity>accessed 15 January 2018. 3 Genius, ‘Empire State of Mind Lyrics’ < https://genius.com/Jay-z-empire-state-of-mind- lyrics> accessed 15 January 2018. 4 ExposedLyrics, ‘Newport (ymerodraeth State of Mind) lyrics)’ < https://www.exposedlyrics.com/goldie-lookin-chain/newport-ymerodraeth-state-of-mind- lyrics.html> accessed 18 January 2018. 5 Jemima Kiss, ‘Newport State of Mind: songwriters pulled the video from YouTube’ (The Guardian, 11 August 2010) <https://www.theguardian.com/media/pda/2010/aug/11/newport-state-of-mind- youtube> accessed 15 January 2018. 4 Durham Law Review [2018] in its very genes6 – offered no statutory protection to parodies. Courts offered little help; as shall be shown, parodic use was not considered a valid defence to copyright infringement. The takedown of Newport, an evidently popular home-grown work, subsequently served as a prominent example in the case for a UK parody ‘exception’,7 protecting parodies that would otherwise infringe copyright. The UK’s Copyright, Designs and Patents Act 1988 (‘CDPA’) confers an exclusive right upon the copyright-owner (often the author, although copyright may be assigned elsewhere) to authorise use of the work for various ‘acts restricted by copyright’, including copying of the work, performance, broadcasting, and issuing to the public.8 Copyright in a work is infringed by a person engaging in such restricted acts without the licence of the copyright-owner.9 As we shall see, parodying copyright-protected work typically involves the (prima facie illegal) copying, alteration and use of such work. Without a parody exception, copyright-ownership is relied upon to stifle parody. However, a successfully executed parody may be understood as a new work in which society perceives independent value (criticism, humour or other pleasure), as Newport arguably provided. Notably, EU Directive 2001/29/EC (the ‘InfoSoc Directive’)10 provided a list of possible exceptions to copyright, including an exception for ‘use for the purpose of caricature, parody or pastiche’.11 However, inclusion of the exception was left, and remains, at the discretion of 6 Andy Bloxham, ‘British humour ‘dictated by genetics’ (The Telegraph, 10 March 2008) <www.independent.co.uk/news/uk/this-britain/joking-aside-british-really-do-have-unique- sense-of-humour-793491.html>accessed 10 January 2018. 7 Ian Hargreaves, Digital Opportunity, A Review of Intellectual Property and Growth (IPO, 2009) [5.63]. 8 CDPA, s.16(1). 9 CDPA, s.16(2). 10 Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L167/10. 11 InfoSoc Directive, Article 5(3)(k). 5 Durham Law Review [2018] member states.12 Eventually, in 2014, the CDPA was amended, with s.30A now providing an exception for the three genres above. This dissertation specifically focuses on parody, although there will be a brief discussion of parody’s overlap with caricature and pastiche. Chapter I of this dissertation will explore the background to the exception, and outline two broad questions regarding its operation: which works are to be regarded as parody, and how is the exception limited (with regard to fair dealing, and moral rights). A vital source of guidance will be the recent Court of Justice of the European Union (CJEU) judgment in Deckmyn v Vandersteen (Deckmyn), the first case to be referred to the CJEU on the parody exception as contained within the InfoSoc Directive.13 Advocate-General Villalón’s Opinion (the ‘AGO’),14 which preceded the full judgement, will also be considered. The key aspects of Deckmyn will be discussed, picking out contentious areas which the judgment has failed to shed light on, or itself created, in relation to the two questions outlined above. Chapter II then expands on the issue of ascertaining which works fulfil the definition of parody. It analyses Deckmyn’s conceptualisation of parody, particularly the requirement that parodies constitute ‘an expression of humour or mockery’.15 Significantly, this hurdle invites the question of how to determine what is deemed humorous, a complex and potentially arbitrary inquiry. It will furthermore be argued that parodies without an overtly humorous or mocking intention may also be deserving of protection. Finally, as a case study, it is arguably still unclear 12 Ibid, Article 5(3). 13 Case C-201/13 Deckmyn and Vrijheidsfonds VZW v Vandersteen [2014] ECLI:EU:C:2014:2132. (Deckmyn) 14 Case C-201/13 Deckmyn and Vrijheidsfonds VZW v Vandersteen [2014] ECLI:EU:C:2014:458, Opinion of AG Villalón. (AGO) 15 Deckmyn (n.13) [20]. 6 Durham Law Review [2018] if, using Deckmyn’s definition, the parody exception would have an effectual application with music parodies relying on the original instrumentation, as was the case with Newport. Chapter III then explores a second contentious area, moral rights in relation to parody. With the barrier of copyright removed, moral rights are now expected to apply in certain situations where authors may have a legitimate interest in suppressing
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