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Parody in the UK and France: defined by humour?

Practical Law UK Articles 9-625-2313 (Approx. 5 pages)

Parody in the UK and France: defined by humour?

by Laetitia Lagarde and Carolyn Ang, Baker & McKenzie LLP
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While parody is a recognised exception to copyright infringement in Article 5(3)(k) of the Copyright Directive (2001/29/EC), it is optional for EU member states to implement this exception into national law. The UK amended the Copyright, Designs and Patents Act 1988 (CDPA) in October 2014 to allow fair dealing with a copyright work for the purpose of caricature, parody or pastiche (section 30A). By contrast, France, which is known for its strict stance on copyright, has had a legislative parody exception for decades. Although the UK and France have differed in how they treat parody, the European Court of Justice has held that the parody exception is an autonomous concept of EU law and so should be interpreted uniformly throughout the EU.
While parody is a recognised exception to copyright infringement in Article 5(3)(k) of the Copyright Directive (2001/29/EC), it is optional for EU member states to implement this exception into national law. The UK amended the Copyright, Designs and Patents Act 1988 (CDPA) in October 2014 to allow fair dealing with a copyright work for the purpose of caricature, parody or pastiche (section 30A). By contrast, France, which is known for its strict stance on copyright, has had a legislative parody exception for decades.
Although the UK and France have differed, in both case law and legislation, as to how they treat parody, the European Court of Justice (ECJ) has held that the parody exception is an autonomous concept of EU law and so should be interpreted uniformly throughout the EU (Deckmyn v Vandersteen C-201/13) (see box “ECJ decision in Deckmyn”).
The ECJ held that parody should be an expression of humour and must evoke the copyrighted work while being different from it. This means that parodies that are not recognisably funny or appreciated by the wider public may fall outside of the exception. Ultimately, the court’s sense of humour might be the determining factor between copyright infringement and an acceptable parody.

The UK approach

Section 30A of the CDPA allows fair dealing with a copyright work for the purposes of caricature, parody or pastiche. The Intellectual Property Office (IPO) guidance provides that the words “caricature, parody or pastiche” have their usual meaning in everyday language, but also take account of the context and purpose of the copyright exceptions (www.gov.uk/government/uploads/system/uploads/attachment_data/file/448274/Exceptions_to_copyright_-_Guidance_for_creators_and_copyright_owners.pdf). The IPO defines the terms as follows:
  • Caricature is something that portrays its subject in a simplified or exaggerated way, whether insulting or complimentary and whether for a political purpose or solely for entertainment.
  • Parody is something that imitates a work for humorous or satirical effect.
  • Pastiche is a composition that is made up of selections from various sources or one that imitates the style of another artist or period.
While Deckmyn does not offer much guidance on the concept of fair dealing, English case law shows that this is a question to be assessed globally, taking into account:
  • The proportion of the original work as a whole that has been reproduced.
  • The necessity of featuring the original work in the reproduction.
  • Whether the reproduction will be in competition with the original work, thereby affecting the original author’s sales (paragraph 887, Halsbury’s Laws of England Vol 23 (2013)).
Case law. Although the parody exception was implemented in the UK on 1 October 2014, some lessons can still be drawn from previous case law as parody was occasionally pleaded as a “defence” to copyright infringement. Historically, the test for copyright infringement was whether there had been substantial copying of the works, and whether there had been sufficient independent labour by the parodist to make the piece an original work. Because there was no specific exception for parodies, it was irrelevant to the courts whether the copied work was humorous when the issue of fair dealing was pleaded.
In both Joy Music Ltd v Sunday Pictorial Newspapers (1920) Ltd and Williamson Music Ltd and others v The Pearson Partnership Ltd and another, the courts found that new lyrics, which parodied original works, did not reproduce a substantial part of the expression of the originals ([1960] 2 QB 60; [1987] FSR 97). The new songs had been produced by sufficient independent labour to be a new original work rather than a reproduction. In Joy Music, the modified lyrics had not been put to music, so the court did not find infringement. In contrast, the defendants in Williamson Music had gone further to also copy the tune of the original song. They were therefore liable for copyright infringement of the musical work, although not for the lyrics.
In Ashdown v Telegraph Group Ltd, the Court of Appeal had to deal with the delicate balance between the rights of copyright owners and the right to freedom of expression in Article 10 of the European Convention of Human Rights (Article 10) ([2001] EWCA Civ 1142; www.practicallaw.com/3-101-5589). The court held that where these rights conflict, it must apply the CDPA, as far as it is able, in a manner that accommodates the right to freedom of expression.
The new test. With the implementation of the parody exception, the new test in the UK is whether there has been fair dealing for the purposes of caricature, parody or pastiche. The court will have to consider the principles of parody set out in Deckmyn. This means that the court must find the copied work humorous or satirical in order for it to be considered a parody; an element which is understandably highly subjective and places the parodist at the mercy of the court’s sense of humour.
In Ate My Heart Inc v Mind Candy Limited, Lady Gaga brought a successful claim for trademark infringement against the creators of the Moshi Monsters game ([2011] EWHC 2741 (Ch); see News brief “Goo Goo Gaga: trade mark confusion for the little monsters”). The game featured a character called Lady Goo Goo performing “The Moshi Dance Song”, which mimicked Lady Gaga’s song “Bad Romance”. It is interesting to consider what the outcome of this case might have been if copyright infringement had been pleaded.
Before the parody exception was implemented, the court could have looked at whether there had been substantial copying of the original work and followed Joy Music and Williamson Music. If the lyrics and music had been sufficiently modified, the parody might have been considered an original work of its own accord.
As of 1 October 2014, the test would be whether there had been fair dealing for the purposes of caricature, parody or pastiche. The High Court found that there were similarities in both rhythm and tune between The Moshi Dance Song and Bad Romance, although the lyrics were modified across the entire song (not unlike in Joy Music and Williamson Music). Arguably, the reproduction of the original work is minimal in terms of lyrics and musical composition, and The Moshi Dance Song is also unlikely to compete with the original work in terms of sales figures. So, on the assumption that the court would find The Moshi Dance Song humorous, the parody may well constitute fair dealing.

The French approach

French law is known to be very strict about copyright, particularly because of the strong protection of moral rights. The French Code of Intellectual Property (CIP) provides a limited list of exceptions to copyright infringement, including parody, pastiche and caricature, observing the laws of the genre (Article L 122-5, 4°). Pre-Deckmyn, this was interpreted as follows:
  • The work must be transformative but may pay homage to the original author.
  • The work does not necessarily have to be humorous.
  • The parody should make one laugh without denigrating the original or harming its author.
  • The parody should not allow confusion with the original.
  • The parody can be used commercially but must not be used only for promotional purposes in competition with the original work.
  • The parody cannot include clearly illegal elements.
Interestingly, the French courts had tried to distinguish the three types of parody according to the nature of the derivative works: parody for musical works; pastiche for literary works; and caricatures for figurative works. However, doctrine and jurisprudence consider them as one genus, encapsulated within the generic term “parody”.
A classic example of the French approach is found in SAS Arconsil v Moulinsart SA, where the Paris Court of Appeal found Gordon Zola’s series of novels about “Saint-Tin and his friend Lou”, derived from the Tintin comic books, to be exempt from copyright infringement (Paris Court of Appeal, 18 February 2011, no 09/19272). The court found that the purpose of parody was immediately obvious from the titles and the covers, as was the intention of making people laugh, and there was no risk of confusion between the pastiche and the original work.
More recently, and no doubt influenced by Deckmyn, the French Supreme Court in X v Y considered parody as more than a mere exception to copyright and balanced the extent of copying against other factors, similar to the concept of fair dealing in the UK (Cour de Cassation, 1st Civil chamber 1, 15 May 2015, 13-27.391). The dispute concerned an artist, Peter K, who had reproduced without authorisation works of A Malka, a fashion photographer. Peter K argued that the photographs were a symbol of the excess of advertising and overconsumption. He intended to subvert their primary purpose of advertising and to provoke thought in the viewer’s mind.
The court considered that this was an issue under Article 10, rather than just under the CIP. The court recognised that fashion photographs are copyrighted works, but stated that there must be a fair balance between A Malka’s moral rights and Peter K’s right to freedom of artistic expression, subject to the formalities, conditions, restrictions or penalties provided by law that are necessary in a democratic society to protect the rights of others. Article 10 is considerably more extensive than the “laws of the genre” in the CIP. The case was sent back to the Versailles Court of Appeal to decide on this fair balance.
Laetitia Lagarde and Carolyn Ang are associates at Baker & McKenzie LLP.

ECJ decision in Deckmyn

The Brussels Court of Appeal asked the European Court of Justice (ECJ) for guidance in relation to a dispute over whether a derivative work of a well-known Belgian cartoon constituted copyright infringement or was protected under the parody exception (Deckmyn v Vandersteen C-201/13; see News brief "Defining parody: getting the joke"). The ECJ held that the essential characteristics of parody, which is to be interpreted as an autonomous EU concept, are that it: evokes an existing work, while being noticeably different from it; and constitutes an expression of humour or mockery.
The ECJ noted that, unlike works that have been copied for the purpose of criticism and review, the parody need not relate to the original work or mention the source of the parodied work. The parody also need not display an original character of its own, nor reasonably be attributed to a person other than the original author. The ECJ added that national courts should apply the parody exception in a way that strikes a fair balance between the interests and rights of copyright holders of the original works, and the freedom of expression of users of copyrighted works.
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Resource ID 9-625-2313
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Published on 24-Mar-2016
Resource Type Articles
Jurisdictions
  • European Union
  • France
  • United Kingdom
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