Fight for your right to parody

Posted on June 14, 2015

How will the new copyright exemptions affect rights holders and content creators?

On 1st June this year we will join the US in allowing for a wider use of existing copyright protected work by content creators. The “Copyright and Rights in Performances (Quotation and Parody) Regulations 2014” introduces a defence to copyright infringement where protected works are adapted for the purposes of ‘caricature, parody or pastiche’. This applies to the use of film, music, scripts and anything else capable of copyright protection without the permission (subject to some provisos…of course) of the rights holders of the original work.

In some ways this is simply a reaction to a changing digital marketplace where mash-ups by the likes of Cassetteboy are already commonplace but we can now legitimately look forward to further mash-ups and such parodied movie prequels as ‘The Empire gets Struck’ and ‘Will there be Blood?’ (Thank you, “I’m sorry I haven’t a Clue”).

Under the new regulations, the use of the existing work for the purposes of caricature, parody or pastiche will be a defence to copyright infringement, provided the use of the work is ‘fair’. There has never been a statutory definition of ‘fair’ so it will depend on the particular circumstances of each situation. However, in broad terms it’s important that no more of the original work than is necessary for the parody, caricature or pastiche is used and that a recognisably new work is created which doesn’t act as a commercial substitute for the original.

In this way the new exemptions are similar to the ‘fair use’ exemption for criticism and review, which makes sense when you think that a parody or caricature is a more artistic enactment of that principle. However, these new amendments go further, in that they allow for a new artistic creation to be adapted from the original.

Irreverent artists take note that these exemptions will not get around existing libel and slander laws and that these defenses do not override the moral rights of the author to protect their work from ‘derogatory treatment’, although authors usually have to waive this right under a work-for-hire arrangement.

For writers, comedians, satirists, producers of ‘mash-ups’ and arguably for the public at large this will be very welcome as it allows for creators in the UK to draw on a wealth of material which, until now was entirely protected by copyright. For rights holders this can (as has been proven in the US) lead to some friction; notably including the recent tangle between the Beastie Boys and Goldie Blox where the Beastie’s song ‘Girls’ was parodied in an advert for the toy manufacturer.

Despite the dying wishes of Adam Yauch that the Beasties’ songs would not be used in any form of advertising, the manufacturer circumvented permission from the Beasties to use the track by relying on the parody exemption. The parties settled out of court prior to which, Goldie Blox did issue an apology and remove the track from the advert, perhaps for PR reasons as much as legal ones. Arguably, they had already achieved their aim in gaining a huge number of hits on YouTube and press attention as a result of both the advert itself and the subsequent legal action.

So much for parody and caricature; after all, it’s in our heritage and it may seem strange that our society would deem it illegal. But, what of ‘pastiche’? All terms in the regulations, we are told in the Intellectual Property Office (IPO)’s guidance, are to have their ‘ordinary dictionary meanings’, which in this case would be ‘an artistic work in a style which imitates that of another work’ or ‘an artistic work consisting of a medley of pieces imitating various sources’.

It’s less clear exactly what this would allow for. The IPO says, for example that ‘an artist may use small fragments from a range of films to compose a larger pastiche artwork’. So, on that basis would a television game show be able to take parts of another studio set design (arguably a part of the ‘format rights’) in producing its own set, or a montage of Hollywood’s best ever ‘first kiss’ moments be put together for people’s viewing pleasure or a music re-mixer be able to rely on pastiche to overlay part of his favourite bass line from one Chicago House track with his favourite piano riff from another Chicago House track in ‘celebration’ of this particular dance movement; all of which without recompense to the owners of the originals?

The boundaries will become clearer with time and ultimately it will be for the courts to decide where these lie, but there is clearly now an opportunity to do more with existing copyright material in a legitimate way and we should hope that would be a good thing for a progressive industry.