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
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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’
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)
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 a parody, notwithstanding it fulfilling the definition of parody (laid down in Deckmyn). This may arise where, for example, a parody associates the original work with discriminatory content. However, it will be argued that the UK’s present moral rights framework is insufficiently developed for its new remit following the introduction of the parody exception.
Both chapters advance approaches to alleviate concerns posed by the aforementioned issues.
These are aimed at creating an environment wherein the exception is robust, and lives up to the reasons behind its introduction. There must, however, simultaneously remain ways to enforce the valid claims of copyright-owners and authors, in situations where a parody unjustly prejudices their interests.
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CHAPTER 1
The Road to the Parody Exception (Meets a Deckmyn Roadblock)
Background
[Subtitle] Until 1965, it appears UK Courts were open to interpreting parodies as original works that did not infringe copyright. Glyn v Weston Feature Film Co. concerned an author’s unsuccessful objection to a farcical film loosely based on her novel.16 Though the case ultimately turned on the dissimilarity of the works, Younger J suggested, obiter, ‘the principle that no infringement of the plaintiff’s rights takes place where a defendant has bestowed such mental labour upon what he has taken… as to produce an original result’.17 This principle was subsequently applied by McNair J in Joy Music v Sunday Pictorial Newspapers, where the new work’s originality precluded infringement, despite obvious taking from the original (the defendant had rewritten, and published, lyrics from a popular song).18
A more rigid stance emerged with Twentieth Century Fox v Anglo-Amalgamated Film
Distributors (the ‘Cleopatra case’).19 A poster promoting the film Carry On Cleo (Fig.1, left) parodied the poster from an earlier film, Cleopatra, (Fig.1, right). The poster’s reproduction of a substantial part of the original was sufficient for a finding of infringement, with the clear parodic intent and mental labour expended failing to protect the work.
Fig.1
16 [1915] 1 Ch 261. 17 Ibid, 268. 18 [1960] 2 QB 60, 70. 19 [1965] 109 S.J. 107.
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Schweppes v Wellington entrenched this judicial unwillingness to offer parody any special protection from the application of copyright.20 Here the Schweppes drink logo had been altered to make a parody label for a bubble bath product (‘Schlurppes’). Judge Falconer held that the only question of import was whether there was ‘a reproduction in the defendant’s work of a substantial part of the plaintiff’s work’, stating that whether the defendant, ‘may have himself employed labour and produced something original’ was ‘beside the point’.21
Ordinarily, assessing whether a partial taking of a work meets this criterion of ‘substantiality’,
(or indeed the newer European standard replacing it, requiring an expression of the author’s
‘intellectual creation’ in the copied part)22 often ‘required the courts to make difficult value judgements’ regarding the qualitative importance of what had been copied.23 However, partial taking for parody would almost invariably meet the standard for infringement, as the genre of parody relies on a viewer’s recognition of the original work; it necessarily incorporates substantial elements from the original to foster this recognition. Newport, for instance, though featuring rewritten lyrics, re-used the music and aped the video from the original song. The
20 [1984] FSR 210. 21 ibid, 213. 22 Deming Liu, ‘Test of Infringement: what is it now?’ (2014) 36(9) EIPR 588, 594. 23 Lionel Bently and Brad Sherman, Intellectual Property Law (4th Edn, OUP 2014), 196.
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Schweppes focus on substantial taking appeared, as Phillips noted, ‘to leave no scope whatsoever for a parody defence in copyright law’.24 This proved true as recently as 2013;
Allen v Redshaw, citing Schweppes, noted ‘there is no defence of parody to an infringement of copyright claim, if what has been taken is a substantial part of the claimant’s work’.25
What, then, prompted the arrival of the new provision? Following the InfoSoc Directive, the government-commissioned Hargreaves Review recommended a parody exception in copyright law.26 Referring to UK comedy as ‘big business’, Hargreaves suggested that a parody exception would help ‘stimulate new works in growing sectors of the creative economy’.27
Citing the take-down of Newport, criticising the ‘failure of the [UK’s] copyright framework to adapt’.28 The government agreed with Hargreaves’ findings, and announced it would introduce an exception for parody, citing ‘economic and cultural benefits’, particularly the
‘development of free speech and the fostering of creative talent’.29
The New Exception Poses Two Big Questions
With effect from 1st October 2014, section 30A(1) of the CDPA now reads:
‘Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work’.
24 Jeremy Phillips, ‘The ‘Parody’ Defence to Copyright Infringement’, (1984) CLJ 245, 247. 25 [2013] EWCH 1312, [30]. 26 Hargreaves (n.7) [5.32]. 27 Ibid,[5.37]. 28 Ibid,[5.38]. 29 HM Government, Modernising Copyright: A modern, robust and flexible framework (2012), 31.
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The exception invites two ‘big questions’. First, what should qualify as parody? Damon, noting that neither the CDPA nor the InfoSoc Directive offer any further guidance on the meaning of the term, observes that ‘what amounts to parody… will become a contentious issue, that courts are required to resolve’.30 A case involving the exception has yet to arrive in the UK. However, the CJEU advanced its interpretation of ‘parody’ in Deckmyn. We will explore the judgment shortly, before Chapter II analyses the parameters of parody it proposes.
The second question is whether, definitional issues aside, there remain scenarios in which an author or copyright-owner may be able to suppress the work. Importantly, the provision imposes an additional requirement, namely that the parody work constitute ‘fair dealing’. Fair dealing exceptions protect fair uses of copyrighted works (otherwise constituting infringement) for certain specified purposes (listed in the CDPA) deemed to have public interest value, including private research and study, criticism and review, and news reporting of current affairs.31 The use of copyright material to create a parody is now also a valid fair-dealing purpose, but the taking itself must meet the requirement of fairness.
There is no statutory guidance on fairness. In Hubbard v Vosper, Lord Denning MR held that defining fair dealing ‘must be a matter of impression’.32 Ashdown v Telegraph Group Limited, however, laid down three main factors for assessing fairness have included whether the alleged fair dealing is competing commercially with the copied work (acting as a substitute), whether the copied work had already been exposed to the public, and finally the amount and significance
30 James Damon, ‘Parody, caricature and pastiche: can we learn anything from South Park Elementary?’ (2013) 24(4) EntLR 117. 31 CDPA ss. 29-30. 32 [1972] 2 QB 84 CA, [94].
11 Durham Law Review [2018] of the work taken.33 Notably, Ashdown endorsed the notion that the extent of the alleged fair dealing’s commercial competition was ‘by far the most important factor’ of the three.34
Given the genre’s nature of drawing heavily on elements from the source work, many parodies might appear endangered by Ashdown’s stance that the more of a work is taken, the less likely the dealing is to be regarded as fair.35 However, the same judgement also acknowledges that the test for fair dealing must not be applied ‘inflexibly… based on precedent’ but rather to also
‘bear in mind that considerations of public interest are paramount’, specifically referring to the public interest in the freedom of expression,36 noted earlier as a key consideration behind the exception’s introduction. Furthermore, in Hubbard v Vosper, Megaw LJ, regarding the amount taken as a ‘question of degree’, argued ‘it may well be that… a work is within the fair dealing subsection even though the quotation may be of every single word of the work’.37 A government report released in advance of the exception similarly notes that fair dealing ‘does not rule out copying a whole work’, suggesting ‘whether it was necessary to use the amount taken for the relevant purpose’ as a more apt test in this regard.38 As Deckmyn recognises, through its definitional stipulation that parody ‘evoke’ an existing work,39 parody involves copying significant amounts to foster recognition of the original work. It is submitted that such taking is necessary and in line with the parodic purpose.
33 [2001] EWCA Civ 1142, [70]. 34 Ibid. 35 Ashdown (n.33) [76]. 36 Ibid, [71]. 37 Hubbard (n.32) [98]. 38 Modernising Copyright (n.29) 14. 39 Deckmyn (n.13) [20].
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Moreover, as Silverman notes, ‘genuine’ parodies would generally not run afoul of the other two ‘fairness’ factors listed.40 She specifically argues that parodies would be extremely unlikely reference unpublished works, as the viewer’s knowledge of the pre-existing work is central to the operation of parody, and- crucially, given fair dealing’s focus on commercial impact- that parodies would be unlikely to compete commercially with the referenced work; consumers are rarely more likely to purchase a parody version than the original.41
To illustrate, a parody work like ‘Barry Trotter’ (parodying the Harry Potter series) derives its demand from readers that have already read Harry Potter. Readers would not otherwise appreciate the intended humour in the parody, which relies on knowledge of the original’s plot and characterisation. On the latter point, the government considered the potential economic impact of a new parody exception on copyright-owners,42 citing the work of Rogers et al., who regarded the risk of diminished sales arising from a parody being confused with the original as minimal; they argue that parody’s ‘self-conscious referencing of the original work’ rendered confusion unlikely.43
On the contrary, the government noted that ‘a parody may make an original work more visible to the public and heighten interest in that work. Fan tributes… can also act as advertising for the content on which they are based’.44 Rogers points to the 1971 Tony Christie song ‘Is This
The Way to Amarillo’, which in 2002 was sung in a comedic parody style by two characters on a
40 Iona Silverman, ‘The Parody Exception Analysed’ (2015) 254 Managing Intell. Prop 26, 27. 41 Ibid. 42 HM Government, Consultation on Copyright (2011), [7.111]. 43 Mark Rogers, Joshua Tomalin and Ray Corrigan, The economic impact of consumer copyright exceptions (London: Consumer Focus, 2009), 14. 44 Consultation on Copyright (n.42) [7.113].
13 Durham Law Review [2018] popular TV series. A subsequent reissue of the recording, brought about by public demand following the parody, proved to be the best-selling single of that year.45
The sum of this is that the parody exception appears to pose relatively few concerns in the sphere of a copyright-owner’s commercial interests, protected as they remain by the requirement of fair dealing. Furthermore, as we shall see, Deckmyn specifies that parodies must be ‘noticeably different’ from the original work.46 This definitional hurdle further ensures the exception withholds protection from works seeking to compete with the original as an imitation, or to mine the source work for ideas subsequently passed off as original. A bad-faith attempt by a defendant to rely on the parody exception as a defence following the unauthorised use of protected work tends to be easily recognisable; such defendants would typically aim to minimise differences between the original and the copy (offered for commercial gain) to capitalise on the demand for the original. To summarise, fair dealing, the nature of parody itself and the definitional requirement of noticeable difference may be regarded as collectively reducing the possibility of the new parody exception adversely affecting existing rights-holders commercially.
Instead, our second ‘big question’ really concerns non-commercial clashes, wherein a copyright- holder may arguably have a legitimate basis in seeking that her work not, for instance, be associated with a discriminatory message in a parody. This invites questions over how the moral rights of the author may intervene, or inform a broadened test of fair dealing (explored in
Chapter III). Bearing the above questions in mind, we turn now to Deckmyn. The CJEU’s conception of parody has relevance for both of our ‘big questions’, but the answers provided are certainly not comprehensive, and the judgement creates new questions of its own.
45 Rogers (n.43), 14. 46 Deckmyn (n.13) [20].
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Deckmyn Attempts a Definition
Deckmyn dealt with a referral to the CJEU from the Belgian Court of Appeal. The Belgian case featuring a calendar disseminated by Johan Deckmyn, a member of a far-right political party.47
The calendar bore a modified version of a famous cartoon, replacing the original character with the mayor of Ghent, throwing coins to ‘people wearing veils and people of colour’.48 The rights-holders of the original comic brought proceedings for infringement, wherein the defendant argued the image fell within Belgium’s parody exception, art.22(1)(6) of the Belgian
Copyright Act 1994, following Article 5(3)(k) of the InfoSoc Directive.
The Belgium Court sought guidance on the interpretation of ‘parody’ under Article 5(3)(k). The
CJEU held that parody was an autonomous concept of EU law. Brexit-derived uncertainty regarding future adherence to EU law aside, this would require the UK courts to incorporate
Deckmyn’s understanding of parody. In declaring parody an autonomous concept and thereby seeking to ensure a uniform interpretation of the term, the CJEU stressed the need for harmonisation, holding that national states being ‘free to determine the limits in an unharmonised manner… would be incompatible with the objective of the [InfoSoc] directive’.49 The CJEU then clarified that parody has only two ‘essential characteristics’, namely, that it must ‘evoke an existing work while being noticeably different from it’ and also that it ‘constitutes an expression of humour or mockery’.50
At this juncture it is worth noting the absence of any pre-existing consensus regarding the definition of parody. Rose’s comprehensive census, dating back to Aristotle, identified 37
47 AGO, (n.14), [12]. 48 Deckmyn (n.13) [12]. 49 ibid, [14-16]. 50 Ibid, [20].
15 Durham Law Review [2018] disparate literary understandings of the term.51 Deckmyn’s conception should not, therefore, be unquestioningly regarded as definitive, and is worth subjecting to scrutiny.
It is submitted that the first of the Deckmyn characteristics, that of evoking an existing work while being distinct from it, is relatively uncontroversial. Rose’s own definition refers to a
‘refunctioning of preformed linguistic or artistic material’,52 and Jacques confirms that ‘there is consensus that parody requires an element of imitation irrespective of whether this is of an earlier work, works, style or artistic convention… the parodist adopts that element of imitation in order to make an observation’.53 It is submitted that this requirement is desirable, protecting genuine attempts at parody while excluding thinly-disguised copies attempting to rely on the parody exception.
As explored earlier, a ‘distinct’ work should generally be fairly easy to recognise due to the way the genre operates in an obviously referential way; a ‘genuine’ parody would typically be quite stark in where it departs from the original, given that parody is defined by deviations from an already recognisable work. However, there remain a few select areas where this requirement raises issues, even with parodies that could reasonably be regarded as ‘noticeably different’.
Musical parodies, for example, may pose issues where they retain the entire musical work.
Chapter II considers this particular issue in greater depth.
The second characteristic imposed by Deckmyn, namely that parody necessarily has the function of ‘humour or mockery’, should be regarded with more scepticism. Of defining parody, while
51 Margaret Rose, Parody: Ancient, Modern and Post-Modern (CUP 1993), 280-3. 52 Ibid, 52. 53 Sabine Jacques, ‘The right to parody? A comparative analysis.’ (DPhil thesis, University of Nottingham 2016), 26.
16 Durham Law Review [2018] acknowledging that humour and criticism remain popular functions, Jacques observes that ‘one of the most disputed aspects concerns the functions of parody… the overall picture is confused and likely to encompass many activities’.54 Setting literary classifications aside, it is hard to see how ‘humour and mockery’ are feasible characteristics for stable judicial analysis. This will be explored in Chapter II, assessing the parameters of the new exception. It will be argued that the ‘humour or mockery’ requirement would be complex to implement in a feasible, even- handed way, and would potentially exclude, without good reason, non-humorous parodic works of value.
Deckmyn also has some relevance for our second ‘big’ question, namely whether certain parodies, though arguably fulfilling both of Deckymn’s definitional requirements, should nonetheless be denied protection. We noted earlier such a denial would be unlikely on commercial grounds protected by fair dealing, but might apply in certain non-commercial scenarios, such as where moral rights come into play. On this point, Deckmyn held that a ‘fair balance’ should be struck between ‘the interests and rights of rights-holders’ and ‘the the freedom of expression of users seeking to rely on the exception’.55 The court further considered that Johan Deckmyn’s parody potentially contained a ‘discriminatory message which has the effect of associating the protected work with that message’ and that rights-holders may, in principle, have a ‘legitimate interest’ in ensuring that the work is not associated in such a way.56 However, the CJEU stressed that it was for the national court to determine, in light of all the circumstances, whether the exception applying to such a parody would preserve the aforementioned fair balance.57
54 Ibid. 55 Deckmyn (n.13) [26]. 56 Ibid, [29], [31]. 57 Ibid, [32].
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The CJEU thus left a somewhat wide margin of appreciation for national courts to determine when a copyright holder might object to a parody, notwithstanding fulfilment of Deckmyn’s definitional criteria. The AGO adds: ‘the decision as to whether or not there has been an infringement of moral rights is left entirely to the assessment of the national court’.58 The issue with this, as Chapter III explores, is that the UK’s current moral rights framework is presently ill-equipped to handle this burden.
58 AGO (n.14) [28].
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CHAPTER 2
The Parameters of Parody Pose Problems
Humour: Intent or Effect?
We first explore the CJEU’s stipulation that a parody must ‘constitute an expression of humour or mockery’. How this is to be determined remains uncertain, particularly with the notoriously subjective quality of ‘humour’. Rosati notes the CJEU’s lack of clarification as to whether humorous intent would suffice, or whether the parody would need to have a demonstrable humorous effect.59 ‘Intent’ would necessitate consideration of the parodist’s intention in creating the alleged parody, while a humorous ‘effect’ standard, on the other hand, might require that the parody be ‘objectively’ funny, or amusing to a reasonable viewer.
Although media outlets have previously assumed the test will be one of humorous ‘effect’ (the
BBC declared ‘it would be down to a judge to decide if the parody is funny’)60 there appears to be no discernible basis for such a claim. On the contrary, requiring a humorous effect would likely involve an uncomfortable amount of subjectivity, as making such an evaluation would be connected, arbitrarily, to the specific sense of humour of the relevant court. Moreover, this approach would have the consequence of denying protection to parodists that strive for humour, but fall short. This would be a highly unsatisfactory result, given the potential chilling effect on parodists wary of their work not being correctly construed or deemed sufficiently amusing. Such a development would be wholly at odds with the introduction of an exception supposedly aimed at ‘fostering creative talent’ and encouraging the creation of parodies.61
59 E Rosati, ‘Just a Laughing Matter? Why the CJEU Decision in Deckmyn is Broader than Parody’ (2015) 52(2) CML Rev 511, 518. 60 Clive Coleman, ‘Parody laws set to come into effect’ (BBC, 20 October 2014)
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An ‘intent’-based approach would therefore appear to be the likelier route adopted, as other jurisdictions with protection for parody works have done. French courts, for instance, focus on parodic intention, ‘irrespective of the result embodied in… laughter or smiles, both of which are subject to the talent of the artist and diverse sensitivities of the public, two parameters beyond the grasp of the court’.62 Such a view recognises the arbitrary dangers of courts subjectively evaluating artistic merit. Furthermore, the CJEU’s wording, ‘expression of humour or mockery’ (emphasis added) also appears revolve around the parodist, as opposed to language explicitly necessitating a focus on the properties of the work and its effects (e.g. ‘the work must possess an element of humour or mockery’).
Nonetheless, precisely how UK courts would test intention remains uncertain. A wholly
‘subjective’ analysis of the parodist’s state of mind when creating the parody appears unworkable. All would-be copyright infringers seeking refuge under the exception would be well-advised to insist on having possessed a humorous intention, which in many cases would be difficult to disprove. It is submitted that an ‘objective’ test, such as whether a reasonable viewer of the parody would identify a humorous intention on the part of the parodist, would be preferable.
This would have the desirable consequence of admitting parodies that unmistakeably aim to generate amusement, but arguably fall short. For instance, a parody containing a clear attempt at humour that a court might find too callous (such as ill-judged ‘jokes’ about sexual assault, or taboo subjects like abortion) to regard as having an actual humorous effect would nonetheless
62 Court of First Instance of Paris, 3rd Chamber, 14 May 1992 - SARDOU et autres c. LAMY et autres, RIDA 1992-4 No.154, 178.
20 Durham Law Review [2018] be protected, as a reasonable viewer would nonetheless recognise that an attempt at humour had been made. Although such expression might be in poor taste, Article 10 of the ECHR nonetheless guarantees freedom of expression for all, a freedom extending even to ideas that
‘offend, shock or disturb’.63 Such expression, save for extreme manifestations where an author’s moral rights are infringed (see Chapter III), should not be denied protection merely on the ground that they are arguably unfunny or offensive.
However, it is submitted that in certain situations a supposedly objective test for humorous intent nonetheless operates along uncomfortably similar lines as an effect-based test.
Particularly where evidence is limited, a court facing a defendant insisting on having had a humorous intention would inevitably assess this claim through the evaluative frame of whether the parody contains elements classifiable as humorous. Whether such recognition does take place, however, would arguably remain at the behest of a subjective sense of humour, varying from court to court. If so, the problem remains; what the parodist (and large sections of the public, possibly segmented by) might genuinely deem amusing might not be recognised by a particular court as ever being humorous.
For instance, an alleged parody might take a well-known fictional character and cast that character into a sexual scenario, at odds with the usual characterisation. The famous Hergé character Tintin, for instance, has been the subject of a number of pornographic ‘parodies’, perhaps most notoriously with ‘Tintin in Thailand’, portraying Tintin on a ‘sex-holiday romp’.64 Such treatment raises the question of whether such use of the character could indeed
63 Handyside v UK, (1976) 5493/72, [49]. 64 Gabriel Coxhead, ‘Tintin’s New Adventures’ (The Guardian, 7 May 2007)
21 Durham Law Review [2018] be considered humorous. Even if the work is classified primarily as erotic material, could the incongruity between a viewer’s expectations of a family-friendly cartoon adventure and a version featuring more explicitly adult material potentially be deemed amusing, and an expression of (intended) humour?
In France, action was successfully taken by Tintin’s copyright-holders against a webpage hosting comics depicting Tintin engaged in sexual acts and taking narcotic substances, with the court branding the works ‘denaturations without humour or derision’.65 Elsewhere, however, a Belgian court considering an explicit pornographic adaptation of the popular children’s adventure comic ‘Jommeke’ conceded that the work might ‘display a humorous character to a certain group of readers’, although the work was ultimately not deemed a valid parody on other grounds.66 Such works therefore raise a pertinent question for how ‘humour’ is to be construed for the purposes of meeting the Deckmyn definition of parody. One might certainly argue that pornographic parodies would likely be denied protection in any event on the grounds of moral right infringement (as explored in Chapter III) but that is a separate question, dependent on the varying moral rights frameworks of different countries, from whether the work meets the
CJEU’s definition of parody.
The problem illustrated by this scenario is simply that even ‘objective’ tests for humorous intent are bound to be complicated by subjective conceptualisations of what constitutes humour, and might result in completely different levels of protection for alleged parody works across member states. This would fly in the face of ‘harmonisation’, which, after all, was the basis for labelling
65 Court of First Instance of Paris, (11/06/2004) - Moulinsart et Fanny c. Eric J., Propr. intell. (2005), 55. 66 Court of Appeal of Antwerp, 8th Chamber, (11/10/2000), A&M (2001), 358.
22 Durham Law Review [2018] parody an autonomous concept and imposing the ‘humour or mockery’ requirement which member states having a parody exception are obliged to adhere to.
Mockery – Target & Weapon Parody
Similar questions might be raised concerning the breadth of meaning national courts may afford to ‘mockery’. Importantly, the AGO states that mockery is not confined to mocking the work that is used for the parody (also known as ‘target’ parody), but also includes parodies which merely use the source work as an ‘instrument’ with which to mock a ‘third-party individual or object’ (‘weapon’ parody).67 The alleged parody in Deckmyn again proves useful for illustration, as there was no critique of the underlying comic (‘target’), but instead mocked a third-party political figure (‘weapon’).
Whether ‘weapon’ parodies are indeed classifiable as parody has previously been subject to debate. The AGO itself concedes, for instance, that ‘from the point of view of literary theory, the most deeply-rooted type of parody is that which… is essentially designed to refer to the original work’.68 Broadly, the argument against such works is that the use of copyrighted material is not justified if the work only critiques something else; the parodist is suspected of using a famous work ‘merely… to get attention or to avoid the drudgery in working up something fresh’.69 Essentially, the argument goes, the parodist could make her point about the third-party without resorting to use of copyright material.
However, this view is unreasonably narrow and fails to consider the value inherent in the transformative aspect of parodies. This value lies with the repurposing of the familiar for an
67 AGO (n.14) [64]. 68 ibid. 69 Campbell v. Acuff-Rose Music, 510 U.S. 569 S.Ct. 1164 (1994), 1172.
23 Durham Law Review [2018] unfamiliar purpose, inspiring humour, surprise and/or enjoyment at the creative transformation of the source work. That parodists choose to modify a well-known work to ‘get attention’ may well be true, but this is countered by a discernible value in the transformative process itself. Furthermore, even though their message has little to do with the underlying work, weapon parodies certainly can offer independent value in their own comment on the third-party target, and making use of another work as a vehicle to deliver this message should be regarded as a valid, creative process worthy of protection, as the AGO has done.
Song parodies often exemplify this process. ‘Weird Al’ Yankovic, one of the world’s best-known musical parodists, frequently writes parody songs that do not critique the source song in any way, but deal with entirely different targets in the rewritten lyrics. For example, he parodied the Chamillionaire rap song ‘Ridin’ Dirty’, which deals with themes of racial profiling, stereotyping of African-Americans and police brutality. The self-deprecating parody, ‘White &
Nerdy’, makes no reference to the source work’s themes or Chamillionaire, but instead gently mocks ‘geek’ and ‘nerd’ culture (‘I’m fluent in JavaScript as well as Klingon’) and Weird Al’s own Caucasian heritage (‘I’m whiter than sour cream’). The parody is extremely popular, having amassed over 120 million views on YouTube at the time of writing, highlighting the appeal of weapon parody, the subversion of the original to mock a new, unexpected target, and the ingenuity of replacing existing lyrics to fit within the familiar parameters of a pre-existing musical frame.
Turning to a familiar example, although Newport does make explicit reference to the original artists (‘bugger off Alicia, Shirley Bassey is our queen’) and there is arguably implicit mockery of the grandiosity of the original, (elements of ‘target’ parody), the parody focuses primarily on
24 Durham Law Review [2018] gentle mockery of Newport itself (‘concrete jumble, nothing in order’).70 It is arguably therefore more accurately classified under ‘weapon’ parody. It is submitted that the potential value of such ‘weapon’ parody works (even if value is crudely measured through popular appeal) is considerable. As a matter of practicality, the aforementioned examples really represent the tip of an iceberg; the Internet is awash with film clips, images and songs being repurposed to convey the parodist’s sentiments towards an entirely new subject. This ubiquity strongly suggests it would be more prudent to move forward and accommodate them than embark on a futile attempt to regulate, a sentiment perhaps reflected in the AGO’s endorsement of weapon parody.
Admittedly, the CJEU did not explicitly endorse the AGO’s reasoning, but any disagreement would almost certainly have been raised, as excluding weapon parodies would have immediately precluded Deckmyn from protection. The extension of the exception to weapon parody is an important development, offering protection to a significant class of parody works and in this case, at least, greatly enhancing our understanding of ‘humour and mockery’.
Notably, IPO guidance on the exception appears to have taken the above into account, stating:
‘parody… does not have to comment on the original work or its author. It can be used to comment on any theme or target’.71
Nonetheless, ‘mockery’ still raises other questions of definition, such as what kinds of critical comment fall under the umbrella of mockery, and if the scope of the term admits, for instance, wholly non-humorous or extremely harsh criticism. The CJEU’s wording specifies humour or mockery, perhaps implying independent concepts. If ‘mockery’ may capture non-humorous
70 Newport Lyrics (n.4). 71 IPO (2014) Guidance for creators and copyright owners (2014), 6.
25 Durham Law Review [2018] parodies that offer comment, be it on the source work or some other subject, it is submitted that this would be a welcome development, considering the difficulties with delineating
‘humour’ (potentially protecting some marginally humorous works) and more directly because many parodies offering valuable comment may not have a humorous intent.
Given the lack of CJEU guidance, however, ascertaining mockery’s boundaries presently falls to national courts. This uncertainty is problematic parodists and copyright-holders alike, who remain unsure of how different jurisdictions will act. By way of illustration, a recent Canadian case dealing with a website mocking United Airlines (Untied.com), applied Deckmyn but in doing so appeared to conflate humour and mockery as a requirement, holding that ‘parody requires humour, whereas the Defendant’s website was simply mean-spirited’.72 Though this approach may not be applied in the UK, it certainly highlights the potential for an overly restricted parodic domain arising through a narrowed conception of mockery. It is also noteworthy that the IPO noted, before the exception’s introduction was confirmed and arguments were being made against its necessity, that ‘a parody will not infringe copyright… if the treatment falls within the fair dealing defences such as those for criticism or review’.73 This raises the possibility, in the UK’s context, that the ambit of ‘mockery’ may be restricted in the context of parody, given the existence of an alternative fair dealing avenue by which non-humorous, critical parody works are supposedly protected.
However, fair dealing for the purposes of criticism precludes ‘weapon’ parodies that do not engage sufficiently in the review or criticism of the source material itself, ‘or another work’.74
72 United Airlines v Jeremy Cooperstock (2017) FC 616, [133]. 73 IPO, Taking Forward the Gowers Review of Intellectual Property (2008), [192].
74 CDPA s.30(1).
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As we have seen, Newport and White & Nerdy both do not explicitly target ‘works’, but broader themes, locations, and public figures. Furthermore, the criticism fair dealing purpose has a requirement of ‘sufficient acknowledgement’ of the original work.75 This would appear problematic, particularly for humorous parodies, Walsh arguing that this requirement
‘destroys’ the effect, as ‘inference… and the element of surprise make parody amusing’.76
It is finally submitted that having to revert to another fair dealing exception to protect works that arguably should be classified as parody would significantly undermine the legitimacy and public perception of a new parody exception. In summary, it is submitted that ‘mockery’ should be construed broadly, giving the exception teeth of is own. As Jongsma notes, ‘there should be room for serious parodies’, arguing that the exception be extended to parodies offering criticism or commentary, rather than primarily seeking to achieve a humorous effect.77 As for delimiting when mockery may be unfairly prejudicial, defamation law offers an established and arguably more principled approach than copyright and fair dealing. As Walker LJ held in Pro Sieben Media v Carlton UK Television, ‘criticism may be strongly expressed… without forfeiting the fair dealing defence; an author’s remedy for malicious and unjustified criticism lies, if it lies anywhere, in the law of defamation, not copyright.’78
Why Humour and Mockery?
What Jongsma and many other commentators do not discuss, however, is the more fundamental question of why humour and mockery have been spotlighted as necessary ingredients for parody in the first place. The reasoning behind this stipulation, not elaborated on by the CJEU,
75 Ibid. 76 Alina Walsh, ‘Parody of Intellectual Property: prospects for fair use/dealing in the UK’ (2010) 21(11) ICCLR 386, 388. 77 Daniel Jongsma, ‘Parody After Deckmyn- A Comparative Overview’ (2017) 48(6) IIC 652, 672. 78 [1999] F.S.R. 610, 619.
27 Durham Law Review [2018] is presumably to safeguard against an overbroad exception encompassing too many transformative works. It therefore operates as an additional hurdle, alongside the requirement that the parody be ‘sufficiently distinct’, to restrict unauthorised use of copyright material to use only for the permitted ends of humour or mockery. However, Deckmyn fails to shed light on why humour and mockery occupy this privileged position in relation to other conceivable ends for parodic use.
After all, it is possible to conceive of parodic use that arguably lacks either characteristic but nonetheless offers popular appeal comparable to its humorous counterpart. An example lies in the taking of copyright material to pay a tribute of some kind, as with the following work created following the 2016 death of artist David Bowie (Fig.2, right). Drawing on the famous cover-art of the work ‘The Little Prince’ (Fig.2, left), it was accompanied by the caption: “The Man Who
Fell to Earth is back amongst the stars. Rest in Peace, David Bowie.”79
79 Jarret J Krosoczka (Artist’s Facebook Post, January 2011)
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Without the parody exception, it appears that any case for infringement brought would be decided similarly to Cleopatra; a court would almost certainly find ‘substantial taking’ from the original artwork. A parody defence would appear to be the only viable recourse for the artist.
However, one would be hard-pressed to find a humorous or mocking intention here.
The tribute work was not reproduced on merchandise or otherwise released for commercial sale,80 and it is hard to see how it might compete with the commercial demand for the original artwork. In terms of ‘value’, the work proved popular online, receiving over 45,000 ‘shares’ on
Facebook alone, and in the wake of Bowie’s death provided cheer and comfort to mourners, as evidenced by several comments viewable on the original post. Yet this work would appear incompatible with Deckmyn’s stance on parody, as would many other parodies made with the intention to praise the subject of the work.
Certain musical works offer additional examples of arguable ‘parody’ works with no overt humour or mockery. American musician Danger Mouse first rose to prominence with his work
‘The Grey Album’, which combined vocals from Jay-Z’s ‘The Black Album’ and instrumentals from ‘The White Album’ by the Beatles. It is significant that the work was not created to mock either source artist, or some other target.81 Neither could ‘humorous intent’ be plausibly discerned; it was hailed as a work of genuine innovation, being named among Rolling Stone’s
‘100 Best Albums of the 2000s’82 and Danger Mouse described the laborious process of picking
80 Ibid. 81 Lauren Gitlin, ‘DJ Makes Jay-Z Meet Beatles’ (Rolling Stone, 5 February 2004)
29 Durham Law Review [2018] apart every possible White Album drum and guitar part, and adjusting their tempo and pitch to complement Jay-Z’s vocals).83
It appears clear that a Grey Album equivalent, made entirely out of two copyrighted works (‘mash- up’ works), could be easily supressed by copyright-owners in the UK unless a fair dealing exception applies. Yet, again, the absence of humour would render a parody defence problematic. On this point Jacques has suggested that humour in music might be broadly interpreted to include ‘playful or unexpected juxtapositions, or changes in rhythm or style which break traditional music styles’.84 However, it remains manifestly speculative if such stretching of the understanding of humour would satisfy a court, and appears to veer once again into the domain of humorous subjectivity. Non-musical alleged works of parody devoid of humour or mockery, as highlighted above, would also remain unprotected.
As noted earlier, this dissertation has an explicit focus on parody, but it is worth exploring if the other avenues of the exception (caricature and pastiche) offer a remedy here. We are, however, hampered in this assessment by a lack of CJEU guidance as to how these concepts are defined or applied. The AGO deemed it unnecessary to distinguish between the three categories, noted to have the ‘same effect’ of derogating from copyright.85 Jacques views the three categories as
‘overlapping, rather than impervious terms’, defining parody as a ‘multivalent term which… comprises many genres, such as satire, pastiche and caricature’.86 In this view, the ‘humour or
83 Corey Moss, ‘Danger Mouse Explains How He Did It’ (MTV News, 03 November 2004)
85 AGO (n.14) [46]. 86 Jacques (n.53) 28.
30 Durham Law Review [2018] mockery’ requirement would presumably continue to apply, and these categories would offer no alternative protection to the works discussed.
Hudson, however, contends that pastiche, in particular, is not a variant of parody, and argues that a ‘broad-acting pastiche defence’ may be implemented to protect mash-ups and certain musical sampling.87 IPO guidance on the new exception does partly define pastiche as ‘musical or other compositions made up of selections from various sources’,88 highlighting the possibility of this. However, this possibility is negated substantially by the government’s stated position that substantial taking of musical works should remain subject to licensing,89 a problematic stance discussed further below. On the whole, the feasiblity of reliance on pastiche remains highly speculative without further guidance. It is also recalled that the very need for this discussion stems from Deckmyn’s restrictive requirement of humour or mockery, which remains the obstacle of focus.
Whether parody or pastiche, these works are evidently valued by society. The problem posed here is then one of finding the right balance between this value, and preserving the integrity of copyright. Just as the copyright-owner of a popular song would expect recompense for use of that song in a film, there is at least a prima facie argument that compensation may be expected for use made of the song in engineering a new work, regardless of the ingenuity or transformative value involved.
87 Emily Hudson, ‘The pastiche exception: a case of mashed-up drafting? (2017)4 IPQ 346, 364. 88 IPO Guidance (n.71) 6. 89 Modernising Copyright (n.29) 30.
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This invites deeper questions of what constitutes ‘fair’ dealing, whether parodists should be made to seek licenses, and if the value offered by permitting parodic use should supersede the monopoly ordinarily bestowed by copyright. These questions are valid and are discussed at the close of the chapter. However, the issue presently under discussion is that the ‘humour or mockery’ requirement arbitrarily (again, the CJEU offers no explanation for these being the only valid parodic ends), yet effectively, shuts the door on the aforementioned transformative works, when their demonstrated value suggests they should be instead subject, at the least, to the deeper questions above.
It is to be stressed that, as noted above, EU member states have been granted discretion in deciding whether or not to adopt a parody exception under the InfoSoc Directive. It would appear, then, that discretion should be afforded in member state conceptualisations of parody, but the CJEU’s ‘autonomous concept’ ruling refutes this. Deckmyn reasons that member states being ‘free to determine the limits in an unharmonised manner’ would be ‘incompatible’ with the Directive.90 However, ‘harmonisation’ as a justification appears to be fatally flawed. If the end of harmonisation is to extend a comparable level of protection for any given parody work across member states, the current state of protection and the guidance offered thus far do not inspire certainty that such a goal has been, or will be, achieved.
First, and most obviously, the fact that member states retain the freedom to choose whether or not to implement the exception militates strongly against the notion of harmonisation. Second, it would appear that different countries with different traditions and conceptions of humour and mockery would interpret the CJEU’s requirements differently. As we have seen, the lack of guidance on appropriate tests for humour and mockery leaves open the possibility of different
90 Ibid.
32 Durham Law Review [2018] jurisdictions implementing entirely different means to determine what satisfies these qualities, further questioning the legitimacy of the ‘harmonisation’ justification.
To this end, some commentators have discussed introducing a ‘European’ standard of humour,91 but this appears unworkable. As Baden-Powell and Althoff note, member states have disparate ‘local traditions of comedy… what is considered funny in one member state may not be in another’.92 Different countries having varying cultural tolerances for impertinence, for example; ‘banter’ in one country is defamation elsewhere. Furthermore, parodies commenting on an individual state’s internal political or social condition often rely on specific knowledge commonly possessed only by citizens within that member state. Only those familiar with
Belgian politics would have recognised the implication of the alleged parody in Deckmyn.
In light of the foregoing, it appears somewhat disingenuous to declare parody an ‘autonomous concept’. The sum of this is a conception of parody which appears to deprive certain works of protection, with little guidance on the interpretation of the complex concepts of ‘humour’ and
‘mockery’. It is submitted that the requirement of ‘humour and mockery’ should be challenged by member states, and in the interim period a broad interpretation of humour and mockery should be pursued domestically. In a UK context, the fair dealing assessment is submitted to be the appropriate restrictive hurdle for parody works, as opposed to denying protection due to the arbitrarily imposed requirement of ‘humour or mockery’.
‘Sufficiently Distinct’, Fair Dealing & Licenses
91 Sabine Jacques, ‘Are national courts required to have an (exceptional) European sense of humour?’ (2015) 37(3) EIPR, 134. 92 Baden-Powell & Althoff, ‘The Parody Exception: Having the last laugh’ (2015) 26(1) ELR 16, 18.
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We now return to the other limb in Deckmyn’s definition, namely that the parody evokes an existing work, while being ‘noticeably different’ from it. Musical parodies may run afoul of this in the UK because of how copyright operates with songs. Separate copyright works typically arise, namely the lyrics (literary work), the instrumentals (musical work) and the final sound recording.93
As noted previously, music parodies tend to retain the original instrumentals or re-record a highly-similar version of the music. White and Nerdy and Newport both feature instrumental tracks indistinguishable from the original. The parody’s music track presumably would neither meet
Deckmyn’s ‘noticeably different’ stipulation, nor the consequent fair dealing assessment, thereby exposing the parodist to potential infringement proceedings. A second, but connected, issue, introduced above, is striking a ‘fair balance’ between parody and copyright, as envisaged by
Deckmyn. Is it valid to argue that Newport or mash-ups like The Grey Album constitute fair dealing for the purposes of parody (or pastiche), or should parodists be expected to seek a license to
‘sample’ copyright works, as would be expected of other musicians?
The government’s stance has been far from coherent. Despite the government citing Newport as an example of works demonstrating the need for a parody exception,94 IPO guidance on the exception states ‘it would not be considered fair to use an entire musical track on a spoof video’.95 The government argues that the new parody exception would successfully coexist with licensing, stating that ‘licensing would still be possible, as it is unlikely that taking an entire work… would be considered fair dealing’.96
93 CDPA s.3. 94 Consultation on Copyright (n.42) [7.108]. 95 IPO Guidance (n.71) 6. 96 Modernising Copyright (n.29) 30.
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However, as Spence argues, copyright-owners often refuse to license their works for parody, fearing personal ridicule or a threat to their professional reputation.97 Notably, this was the case with Newport.98 Even setting aside the scenario of refusal, two additional obstacles arise. Firstly, a time factor. Parodists often seek to comment on current events, and licensing would inevitably delay the dissemination of a parody, potentially diminishing the work’s relevance and appeal.
The second is expense, which may well be prohibitive. Research undertaken by Lim demonstrates that ‘most small artists like Burton [Danger Mouse] cannot afford the exorbitant fees required to sample copyrighted works of well-known artists’.99
The stated government position of effectively mandating licenses therefore calls into serious question the effectiveness of the exception for musical parodies, which would represent a glaring omission in the exception. As discussed above, genuine parodies generally do not compete with the original work commercially, often having a positive effect on the original’s commercial performance. Bearing this in mind, the perceived need to protect a revenue stream for the copyright-owner is diminished, and when combined with the unique value arising from the creative, transformative craft in parody, or indeed the message of a parody work, it is submitted that parodies should be distinguished from other uses of copyrighted material, and a new balance between music copyright-holders and parodists must be struck.
Chapter I considered the fair dealing case-law, particularly Hubbard, and noted a prima facie possible use of the entirety or a substantial portion of a work provided that this was necessary
97 M. Spence, ‘Intellectual property and the problem of parody’ (1998) 114 Law Quarterly Review 594, 603. 98 Kiss (n.5). 99 Friedrich Lim, ‘Digital Sampling After the Grey Album’ (2004), 2 JL Tech & Poly 369, 377.
35 Durham Law Review [2018] to achieve the fair dealing purpose (pg.10). It is submitted that musical parody requires substantial use of the original music, allowing the viewer to identify the original song and appreciate the parodic effect of the re-written lyrics. A fair dealing assessment that recognises this, and considers the use made of the entire original musical work alongside the re-written lyrics, is required. As such, it is submitted that UK courts should, in a fair dealing assessment, effectively treat musical parody works as a composite, rather than splitting them into distinct works. This has long been the case in other jurisdictions, such as France, where in the 1988
Douce Trances case the Supreme Court considered that preserving the original melody was not a bar to parody where the accompanying lyrics had been substantially re-written.100 Where a musical parody work is ‘noticeably different’ on account of its re-written lyrics (even where the original music features), the parody exception should apply.
Mash-ups like The Grey Album, though potentially ‘noticeably different’ from the works from which they are derived, present a more challenging scenario for fair dealing because of their overlap with commercial musical sampling. Sampling occurs where musicians incorporate elements of a prior piece of music into a new track.101 The relevant distinguishing factor here for which works should be protected is submitted to be the presence or absence of a commercial motive, a factor that may be objectively assessed by courts under the framework of fair dealing.
A fair balance would not have been struck if musical samplers were now able to freely use prior works and profit commercially under cover of the parody exception, where they would have been expected to license work previously.102 Should the creator of a mash-up work like The Grey
100 Cass., 12/01/1988, RIDA, n°137, p. 98; Paris (1ere ch.) 15/10/1985, D 1986, somm. 1986, obs. Colombet.
101 Jacques (n.84), 7. 102 Ibid.
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Album find popularity and subsequently seek to release the work for commercial gain, a licensing agreement would then be expected.
In summary, the difficulties in ascertaining the parameters of the parody definition, as put forward by Deckmyn, have been highlighted in this Chapter. The requirement of ‘humour or mockery’ raises significant problems of interpretation and potentially precludes, unjustly, certain parodies from protection. The UK’s ‘fair dealing’ approach to music copyright arguably also needs revision to extend certain protection to musical parody.
CHAPTER 3 Moral Rights and Parody
Parody and Non-Commercial Grounds
We return our attention now to whether a parody may in certain situations be restricted on non-commercial grounds, such as when the parody contains discriminatory or offensive content.
The furore over the character ‘Pepe’, a cartoon frog created in 2005 by artist Matt Furie, is illustrative. The use of the character’s likeness spiralled out of Furie’s control when Pepe became a popular online meme, a sort of global in-joke for online posters using re-drawn
37 Durham Law Review [2018] pictures of Pepe’s face as a shorthand for reactions to events; ‘knowyourmeme.com’ lists several examples, a popular variant being using ‘smug Pepe’ to display satisfaction or glee.103
Things took a darker, more politically-fraught turn for Furie’s creation when, as CNN describes it, Pepe was ‘appropriated as a mascot for the alt-right’.104 Pepe’s image was reworked to variously depict the character as Donald Trump (fig.3), Hitler, a KKK member, and other racist caricatures, being ‘deployed again and again to represent beliefs that hurt others’.105
(Fig 3.)
Matters worsened such that in 2016, the Anti-Defamation League (a prominent US non- governmental organisation fighting ‘anti-Semitism and all forms of hate’) labelled Pepe a ‘hate symbol’ for promoting ‘anti-Jewish, bigoted and offensive ideas’.106 Such was the scale of misappropriation that Furie, who has engaged in various legal disputes over such unauthorised uses of Pepe for discriminatory purposes (including an ongoing one over a commercial poster
103 Knowyourmeme, ‘Pepe the Frog’
38 Durham Law Review [2018] featuring Pepe alongside various ‘alt-right’ figures)107 described the experience as a ‘nightmare’ and ‘killed’ the character of Pepe as a symbolic response to the misappropriation.108
The case of Pepe illustrates how parodic use has the potential to cause harm to an author in a sense that is not necessarily pecuniary, through the hurtful distortion of an author’s work (in this case, a character) with offensive or discriminatory speech, or distress over false attribution, should members of the public wrongly assume the parody was the work of original author. This brings us to the notion of moral rights. Such rights operate on the premise that creators of artistic works have, in addition to the economic rights as enforced through copyright and fair dealing (in the UK), personal rights that transcend economic or property rights.
Bird & Ponte trace this notion to Hegel, and the argument that works created through mental labour embody the ‘individual essence’ of the author, being a ‘direct embodiment of the author’s personality, identity and even her creative soul’.109 Moral rights thus recognise the author’s personhood attaching to a piece of art, and a consequent need to protect that work from distortion. Liemer characterises this element of investing oneself in art as a process of
‘personal risk’, arguing that moral rights seek to encourage the taking of that risk, as where
‘artists feel more secure about the treatment they as creators and their creations will receive, they are more likely to create’.110
107 ibid. 108 Elle Hunt, ‘Pepe the Frog Creator Kills off Internet Meme co-opted by white supremacists’ (The Guardian, 8 May 2017)
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Identifying when a parody might broach moral rights, however, is not a straightforward question. In Deckmyn, also featuring a cartoon being repurposed for political ends, the CJEU merely acknowledged, as discussed above (pg.16), that ‘holders of rights’ may have a ‘legitimate interest’ in not having work associated with discriminatory messages, leaving national courts to assess whether a fair balance would be struck with the application of a parody exception. The
AGO notes the InfoSoc Directive’s submission that ‘moral rights should be exercised according to the legislation of the member states’111 and concludes that ‘the decision as to whether or not there has been an infringement of moral rights is left entirely to the assessment of the national court’.112
Moral Rights in the UK
The implication of the above is that the UK’s moral rights framework will be relied upon to resolve situations like Pepe’s and Deckmyn. The CDPA recognises moral rights to protect, inter alia, a right to be identified as the author of a work (paternity), a right to object to derogatory treatment (integrity), and a right not to have work falsely attributed to her.113 Notably, these rights exist independently of copyright protections, meaning that the creator retains a degree of control over her work even where the property rights under copyright have been conveyed elsewhere; a record label might own the copyright over an artist’s music, but the musician would retain moral rights.114
Pre-exception, the straightforward ‘substantial part’ analysis imposed on parody meant that a finding of infringement was highly likely. The arrival of the new exception, however, implies
111 InfoSoc Directive (n.10), Recital 19. 112 AGO, (n.14) [28]. 113 CDPA ss. 77, 80, 84. 114 Bird & Ponte (n.109) 218.
40 Durham Law Review [2018] that moral rights assume a new breadth of responsibility, as authors need a new legal basis for suppressing parodies they deem objectionable. However, moral rights in the UK have not been updated in any way to prepare for this new mandate; in a report discussing the new parody exception, the government declared ‘the existing moral rights regime will be protected unchanged’.115 The following discussion considers whether moral rights, as they currently stand, will offer adequate protection.
As Bently and Sherman note, the UK offers less protection in the moral rights arena than other jurisdictions, omitting certain rights such as the right to correct a work or withdraw it from circulation (as may have proved useful in a Pepe-type scenario).116 Tellingly, UK moral rights arrived only following an obligation to give effect to Article 6bis in the Berne Convention, requiring Berne Union members to grant authors attribution and integrity rights. Rather than importing the Berne text wholesale, the CDPA introduced, in a ‘cynical, or at least half-hearted’ manner, weakened rights, limited by several omissions and exceptions.117 Unlike jurisdictions like France or Australia, moral rights in the UK may be waived,118 which Durie describes as the
‘greatest compromise in the Act’, given the potential for artistic integrity to be undermined.119
Harrison notes the prevalence of standard-form contracts in the music industry that include moral rights waivers in the ‘widest possible’ terms.120
Pressingly, the separation of copyright-holding and moral rights, which are not transferable from the author, appears to leave non-author copyright-holders without access to actions
115 Modernising Copyright (n.29) 31. 116 Bently & Sherman (n.23) 272. 117 J. Ginsburg, ‘Moral Rights in a Common Law System’ [1990] Ent L. Rev 121, 129. 118 CDPA s.87. 119 R. Durie, ‘Moral Rights and the English Business Community’ [1990] Ent L. Rev. 40, 48. 120 Harrison, A. (2014), Music: the business (6th ed., Random House, 2014), 145.
41 Durham Law Review [2018] rooted in moral rights. Alternatively, (attribution) rights may not have been asserted or rights may already have been waived by authors, adding to the predicament potentially faced by both authors and copyright-owners in light of the new exception. Furthermore, as we shall now explore, the operation of the rights themselves is uncertain in scope. We focus on the right of integrity, arguably the most pressing moral right in the context of parody given the inevitable distortion of the source work, before briefly discussing false attribution.
Integrity
A creator in a Pepe-equivalent scenario would presumably consider invoking the integrity right when bringing a claim. To succeed, the author must show a ‘treatment’ of the work that is also
‘derogatory’.121 ‘Treatment’ is defined by the CDPA as an ‘addition to, deletion from, alteration to or adaptation of the work’.122 Hence, ‘treatment’ implies alteration to the work’s internal structure. Notably, this is a more restricted approach than the Berne Convention, which did not specify any ‘treatment’ hurdle; it permits authors to object to any ‘derogatory action’ related to the work.123
The UK’s treatment hurdle poses uncertainty for parody, as whether certain arguably parodic acts may be regarded as ‘treatment’ remains unclear. For instance, a parody placing the entire work in a new context without modifying the internal structure might not amount to treatment.
For example, Richard Cheese & Lounge Against the Machine are a musical comedy group that perform popular music (frequently high-tempo rock songs) in a laid-back, lounge/swing style, for comic effect. The original instrumentation is unrecognisable, but the original lyrics are preserved. There might be a prima facie case for copyright infringement of the lyrical literary
121 s.80(2)(a). 122 ibid. 123 Bently & Sherman (n.23) 284.
42 Durham Law Review [2018] work, assessed under fair dealing (discussed above) but given that no changes are made to the lyrics this may not be sufficient for ‘treatment’ in an integrity right action. Bently and Sherman offer additional examples of uncertain ‘treatment’ scenarios, including performing a tragedy, with the lines unchanged, as a farce.124
The second, more critical hurdle, namely that the treatment also be ‘derogatory‘, requires treatment involving ‘distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director’.125 However, like ‘treatment’, there is significant uncertainty as to the scope of what is derogatory. Confetti Records v Warner Music UK interpreted
‘otherwise’ as requiring that prejudice to honour or reputation was a necessary condition for
‘distortion or mutilation’ to be made out.126 The (limited) case-law demonstrates the relatively high bar this interpretation sets for a work to be ‘derogatory’. In Confetti, which found no derogatory treatment despite the original work (a largely instrumental track) being heavily modified by the addition of rap lyrics referencing drugs and violence (particularly the phrase
‘string dem up one by one’, which the claimant construed as an ‘invitation to lynching’).
Notably, the ‘fundamental weakness’ in the claimant’s case was the lack of evidence of prejudice to the claimant’s reputation.127
In this view, the UK integrity right involves an objective assessment of whether reputational harm has been made out. This should be contrasted with what Waisman characterises as the
‘broad’ civil-law approach, as in France, where ‘the (integrity) right has not been restricted to…
124 ibid. 125 CDPA s.80(2)(b). 126 [2003] EMLR (35) 790, [149]-[150]. 127 ibid, [157].
43 Durham Law Review [2018] prevent alterations that may affect the author’s reputation’; the right is available to authors objecting to modifications generally, and decided case-by-case.128
Even other common-law jurisdictions which do require prejudice to honour or reputation are somewhat less concerned with an objective demonstration of reputational prejudice. In Canada,
Snow v The Eaton Centre held that the words ‘prejudicial to honour or reputation’ would admit an author’s subjective perception of prejudice, as long as it was reasonable.129 However, Tidy v
Trustees of the Natural History Museum explicitly refuted Snow’s approach, reiterating a need for evidence of prejudice.130 Despite this, in 2012, the Patents County Court in Delves-Broughton v
House of Harlot muddied the UK position by finding that a defendant’s cropping of a photo, despite there being no evidence of prejudice to reputation, was nonetheless derogatory.131
This is a critical area of uncertainty. There are limitless scenarios in which a parodic modification may cause hurt to an author, despite being unlikely to prejudice a creator’s reputation, so the need for clarity on how the integrity right applies is paramount. Intriguingly,
Jacques suggests Deckmyn’s condition of noticeable difference means valid parodies would typically be recognised as not emanating from the original author, and therefore objectively not prejudicial to reputation, because the original author maintains a distance from the views expressed in the parody.132
Following this reasoning, a scenario like that of Deckmyn or Pepe may not result in a successful integrity action in the UK, it would be sufficiently clear that it was not the original author
128 A Waisman, ‘Rethinking the moral right to integrity’ (2008) 3 IPQ 268, 275. 129 (1982) 70 CPR (2d) 105. 130 [1996] EIPR D-86. 131 [2012] UKPCC 29, [24]. 132 Jacques (n.53), 197.
44 Durham Law Review [2018] expressing discriminatory views. This view extends little consideration for the hurt faced by creators, and arguably insufficient regard for Deckmyn’s ruling that creators had a ‘legitimate interest’ in not having works associated with offensive views (which did not equate this interest with reputational damage). Where should the balance be struck?
It is submitted that the integrity right should be available to authors facing distortions that cause prejudice to authors (beyond mild feelings of offence), even if such prejudice is arguably not reputational. If the integrity right only precludes modifications prejudicial to reputation, it is arguably also unclear how the integrity right is differentiated from a defamation action (unless the threshold of damage to reputation is lower, as defamation now requires the higher standard of ‘serious harm’). It is submitted that the avenue of prejudicing ‘honour’, the specific interpretation of which Griffiths notes has been largely avoided in the UK by ‘interpreting honour or reputation as a composite phrase synonymous with reputation’,133 is ripe for closer examination.
Defining ‘honour’ along the lines of an author’s sense of self-respect or dignity, and allowing it alongside reputational prejudice as an alternative route to a finding of derogatory treatment, would introduce a more sympathetic standard for authors that are unable to demonstrate reputational damage but clearly are affected by a parody. In essence, ‘honour’ has the potential to be used by courts to recalibrate the balance between authors and parodists following the arrival of the new exception.
133 Jonathan Griffiths, ‘Not Such A Timid Thing: The UK’s Integrity Right’ in Griffiths & Suthersanen (eds), Copyright and Free Speech (OUP 2005), 234.
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Although a reputation-based integrity assessment offers objective certainty, it is submitted that sacrificing a degree of certainty in favour of flexibility would allow the exception to be more appropriately regulated, considering the extremely wide range of prejudicial scenarios posed by parodic use. This range also implies a need for the first hurdle of ‘treatment’ to be abolished, given that it may be an action-crippling factor for authors despite having little, if any, discernible bearing on the primary question of whether there has been unfair prejudice caused by the parody.
False Attribution
Concerns over false attribution may arise where a creator suspects the public may incorrectly assume her authorship or involvement with a circulating parody. Again, the requirement of noticeable difference is relevant here, ostensibly operating to prevent such a scenario. Although the precise test has not been formulated in the UK, it is most likely understood to refer to a lack of confusion, understood as the requirement that the ordinary public not believe they are viewing the original work, or believe an artistic or commercial link exists between the original and the parody.134
However, certain popular kinds of ‘parody’ thrive on the borderline of such viewer confusion, aided by increasingly sophisticated editing-software tools. Subtly editing a celebrity’s answers in an interview to make their responses appear ludicrous is one example. Such parodies elicit laughter from those who recognise what has been done, but may confuse a majority of viewers, and on this basis would likely not meet the criterion of noticeable difference. Intriguingly, this requirement aside, Deckmyn arguably endorses the legitimacy of ‘confusing’ parody through
134 Jacques (n.53) 137.
46 Durham Law Review [2018] holding that a parody need not ‘display an original character of its own’ or indeed ‘reasonably be attributed to a person other than the author of the original work’.135
A novel way to reconcile these perspectives and preserve this form of parody may be the widespread introduction of a recognised symbol (perhaps ‘Pdy’ enclosed in a circle) to demarcate that a work is parodic, which may be subtly displayed (to preserve the element of surprise) but readily identifiable should a viewer seek confirmation of the work’s veracity.
A Way Forward?
We have seen how the parody exception raises the spectre of a somewhat extreme status quo reversal for creators in the UK; from comfortable, certain protection under the ‘substantial part’ test, to relatively acute exposure to parody under a relatively emaciated UK moral rights framework. While the parody exception is welcomed, there is a commensurate need to ensure that creators (and copyright-owners) nonetheless retain a degree of protection for their works, as Deckmyn recognises. To this end, cavities in the moral rights framework demand attention.
The government has pointed to other jurisdictions as ‘evidence’ that a parody exception may coexist with copyright,136 but has neglected to consider how those jurisdictions apply moral rights more rigorously to maintain that coexistence.
We have discussed potential ways to bolster the integrity right’s application. The problem of waivers may also be alleviated somewhat should an awareness of the potential for parodic use result in more precise agreements, creators henceforth waiving their rights only for clearly specified uses by copyright-holders. Finally, to extend protection to copyright-holders themselves,
135 Deckmyn (n.13) [21]. 136 Modernising Copyright (n.29) 30.
47 Durham Law Review [2018] it is submitted that courts be open to incorporating moral right-equivalent considerations in certain fair dealing assessments. Indeed, in discussing the parody exception, the government has explicitly indicated that ‘respect for moral rights could be a factor in whether an act is considered fair dealing’.137
This might appear odd. As discussed above (pg.9), fair dealing is primarily concerned with the commercial implications of copying. Accordingly, should a claim be brought by a (non-author) copyright-holder against an arguably derogatory parody, a court would not, prima facie, be obliged to consider whether any integrity right had been breached. However, it is submitted that a derogatory parody may also invite an adverse commercial impact, rendering this factor relevant for fair dealing. Should the public associate the original work with a parody featuring pornographic or discriminatory content (the quandary faced by a Pepe copyright-holder, for instance), the original’s demand may well be impacted. Deckmyn’s stipulation of ‘fair balance’ should be recalled; to ensure this, fair dealing may need to be poised to admit factors traditionally reserved for moral rights.
Admittedly, the lack of a pioneering case involving moral rights and the new parody exception renders the above solutions speculative, and might not accurately predict the future direction taken for moral rights, but the overall need for refinement and clarity in their application, in light of the new exception, has been demonstrated.
As a final, general point on strengthening the exception, the gulf between law and practice may sometimes require bridging. YouTube is a key platform for the dissemination of parody, but notably employs ‘Content ID’ software, an algorithm straightforwardly detecting matches in
137 ibid.
48 Durham Law Review [2018] user-generated content with an existing database of copyright-protected work.138 This system has arguably erred on the side of convenience and caution for YouTube, leaning towards taking down parody works at the request of copyright-holders without any further attempt at evaluating the legal status of said parodies.139 Such online practices may well dissuade parodists
(for whom litigation would likely be an unappealing, costly endeavour) and require addressing by governments to result in a more even-handed approach and the practical operation of parody exceptions.
CONCLUSION
This dissertation has discussed the pitfalls engendered by the new exception, on both sides of the coin. Chapter II dissects the problematic and ultimately overly restrictive ‘humour or mockery’ requirement which may prevent the exception from applying to parodic works deserving of protection. Chapter III, however, has highlighted the presently uncertain ability of moral rights to protect creators. In summary, although the parody exception has wrought a new road for parody in the UK, the path remains a relatively uncertain one. The only illumination at present is the murky, unsatisfactory light of Deckmyn. For the parody exception to live up to the reasons behind its introduction, Deckmyn’s conception of parody should be reconfigured, and the UK’s present moral rights framework improved.
138 Jacques (n.53) 334. 139 ibid.
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