The Treatment of Parodies in UK Copyright Law: a Case for Reform
About the Author
Samantha Love read Law at Merton College, Oxford, and is currently following the BCL course.
How many Youtube music video parodies have you seen? How many said ‘no copyright intended’, or ‘no copyright infringement intended’?
This is an area of law which is very obviously out of line with current ideas of what is acceptable – you can’t intend copyright, and nor do you need to intend to breach copyright in order to do so. These online parodies are all illegal, unless they’re using music which is out of copyright (unlikely, it only really leaves you with old recordings of classical music) and yet for the most part they’re not being challenged and in fact are actively encouraged by those who watch them and are increasingly seen as an important part of popular culture. Who hasn’t seen a ‘Gangnam Style’ parody?
As well as amusing people, parody often criticises the original work or another subject-matter to make a political point. It has a long tradition as an art form and is nowadays open to everybody due to the ease and cheapness of recreation and distribution over the internet. Often rightsowners will not bother to ask for a parody to be removed because of its small impact or distribution, but when a video or piece of writing becomes more well-known there can be challenges to the legality of the work. In the UK there is no defence of parody for infringement of copyright, though many other EU countries and the US do protect such works rather than requiring a license from the author or rightsowner. It is about time we joined these jurisdictions, something which the government itself is beginning to realise.
A bit of groundwork – a parody or pastiche is a piece of work which changes an existing artistic work, often to make a political point or provide humour. A ‘work’ can be in many formats (music, writing, art) and we call the creator of that work the ‘author’ in copyright law, even where we might normally use lots of words such as ‘sculptor’, ‘scriptwriter’, ‘composer’ etc.
State of play – the current law
At present, parodies or pastiches are not protected by copyright law under their own defence, although the Gowers Report in 2008 suggested that they might be indirectly protected in the current legislation (the Copyright, Designs and Patents Act 1988). There are two relevant parts of the legislation here: firstly, if less than a ‘substantial part’ of the original work is taken to create the parody then there is no infringement of copyright at all; and secondly if the work is being made for the purposes of ‘criticism or review’ then the work is protected. The report points out that there is the alternative possibility of asking the rightsowner for a licence to create and sell the work.
These three apparently helpful parts of the law are not in fact always so helpful. As to copying a ‘substantial part‘ under s16(3), parodies tend to use more than the bare minimum of the original work because its aim is to remind you of that original work. This was recognised in an American case (Campbell v Acuff-Rose) and it’s something we can easily understand ourselves; parodies of music videos will use largely the same music even if reworked or re-recorded, and/or similar visual effects in the video to go with it. Often the funny part of the parody will be the extent to which it takes parts of the original work and changes them. A good example is the ‘Eton Style’ video which takes the dance moves from the original song and puts them in the completely different setting of an English boarding school. The threshold for ‘substantial part’ is low at the best of times anyway. Although it was a controversial case, it is worth noting that one case found a small passage from Ulysses (a large book to say the least) to be a substantial part.
As for criticism and review under s30(1), there are two problems. Sometimes a parody won’t be criticising the work, but instead the views of the original author or a completely different topic. mydavidcameron.com , a website created during the 2010 UK election campaign to allow people to add their own slogans to a template from the Conservative election campaign, isn’t wholly aimed at pointing out how bad the posters are. The policies of the party were the main target here. And parodies such as Pride and Prejudice and Zombies or Bored of the Rings are just plain fun, so are unlikely to come within such an exception. The second problem is that the section requires ‘sufficient acknowledgement’ of the authorship of the original work. Not every parody will wish to openly point out that they’re a parody of another work – sometimes half the humour comes from it almost seeming like an original work. Pride and Prejudice and Zombies is said to be co-authored by Jane Austen, but some artists won’t wish to do something like this. If most people are likely to understand the joke and therefore know who created the original work, is this a fair requirement?
So at present this leaves us with licensing as the best option for a parody. However, not all rightsowners will agree to license a parody even if it won’t affect the market for the original work. An artistic work is a piece of self-expression, and it is not surprising that an author would not want someone else changing their work or using it for comedy purposes, especially if the parody is critical of the original. The parodist Weird Al Yankovic is surprisingly effective at getting licences for his parodies, but this may in part be because the rightsowners know that his songs will be protected in the US and most of the EU whether they agree to them or not, so they may as well agree to a licence fee to make some money out of the new work. The question of course is whether we are happy with taking away an author or rightsholder’s control over a work’s reuse.
Time for a change? The government reports and the justifications for a parody defence
There have been two UK reports into the possibility of a parody exception, in both 2008 and 2011. The latter has suggested a parody exception, and a piece of legislation was drafted in 2013 and distributed for consultation (https://www.ipo.gov.uk/techreview-parody.pdf) . The suggested section looks like this:
“30B Caricature, parody or pastiche
(1) Copyright in a copyright work is not infringed by any fair dealing with the work for the purposes of caricature, parody or pastiche.
(2) To the extent that the term of a contract purports to restrict or prevent the doing of any act which would otherwise be permitted under this section, that term is unenforceable.”
There’s no requirement of authorship acknowledgement and seemingly no limit on the amount of the original work which can be taken. Notably, this defence of parody cannot be excluded by contract so that it is always available. It will be interesting to see how the consultation responses view this suggested section; it is perhaps more permissive of parodies than some other jurisdictions but not by a great deal.
There are two big questions here: do we want a parody exception, and if so then what types of parodies/pastiches do we want to permit without licensing?
In favour of a parody defence, parodies are in themselves creative works. They cannot be classed as copying in the sense of plagiarism because a parodist is not pretending to be the author to make money from their work or otherwise making something from nothing. The type of effort which goes into a parody is about changing a work to add an extra message, whether about the original or something else. Its aim is to ‘conjure up’ enough of the original to make the point obvious, since often the joke is only funny because of the context. The Robin Thicke parody ‘Defined Lines’ makes a point about the objectification of women in society being normal by objectifying men in their video; if it were not close enough to the original video Blurred Lines to remind you of it and point out the marked differences in how we react to men and women being objectified then it wouldn’t be able to make its point. However, that doesn’t take away from the fact that a large amount of work has gone into a new video and song lyrics to make a serious political argument. Should we really class these authors in the same category as those who copy a piece of work in an attempt to make money from buyers who think it is the original?
Secondly, parodies can make an important contribution to a debate or highlight an important issue. The current backlash against music videos objectifying women and with no particular video plot has been supported by parody videos of various songs, including Miley Cyrus’ ‘Wrecking Ball’ and the Robin Thicke video mentioned above. Ditto mydavidcameron.com, which whilst having an amusement value is also about making a political point. Greenpeace has made its message clear before by changing the graphics of large corporations’ trade mark signs; whilst this sort of use has been found illegal in even some jurisdictions which permit parodies and pastiches it is clear that the point can be made quicker and more forcefully with this sort of use than a plain pamphlet. Parodies can therefore be an important aspect of free speech, and whilst the parodist might be able to make the point another way this will often be the more effective method.
Thirdly, our law is out of line with other jurisdictions which risks blocking certain content from the UK and stifling our creative industries. Banksy’s more well-known parodies have been of paintings out of copyright, such as Monet’s Water-Lily Pond, but if he wanted to work on more recent artwork then a move to America or mainland Europe might be a good idea. And when it comes to larger outfits there is a definite opportunity being missed out on if they cannot work or distribute in the UK. The fact that other jurisdictions do allow parodies does not necessarily make them right, but on top of the other arguments being made in favour of an exception there is the point that harmonisation of laws makes it easier for parodists and rightsowners to know where they stand worldwide. The European legislation does include a parody defence which we could make use of, bringing copyright law more into line across Europe.
For an individual example, take ‘Newport State of Mind’. The parody of ‘New York (Empire State of Mind)’ was removed from YouTube after it got so popular that the creators were talking about selling the song on iTunes for Comic Relief. It seems a shame that a parody which was created by local talent, not financed by a recording studio (it seems) and which was going to make money for charity from their work was prevented from doing so despite the fact that the parody has probably had little impact on sales of the original song and doesn’t even criticise it!
The current situation also ought to change because the current law is out of sync with new trends in technology. We are now at a point where anyone can create and upload a parody of a music video to Youtube within a few hours of it first being released. Many are ignored by the larger world but as we have seen above those which do become popular can be stifled by the record companies incredibly quickly. Much as we introduced an exception to the copyright laws for transferring music on CDs to digital format in 2011, we should recognise that our current law on parodies is out of line with what society finds acceptable. We all watch music video parodies online, and to say that all of them are illegal to make and watch seems so out of line with current thinking that a change in the law seems necessary if we can find a good reason for it.
As for what parodies should be permitted, the problem here is that any limits may amount to censorship of work which might seem inappropriate now but is in fact only ahead of its time. And that we might not be comfortable with asking the courts to decide what is a ‘parody’ and what is just silliness, or whether a parody ‘deserves’ protection. Two Live Crew’s rap version of Pretty Woman makes a point about objectifying women in the street, but how likely is it that a white male judiciary would understand the subtlety of the point and how many would miss that the lyrics are being ironic? This is not to say that judges aren’t intelligent, just simply that they tend to be drawn from a certain section of society which isn’t familiar with this part of popular culture. In addition, the more limits you draw on the defence the more likely that large recording companies or publishers can bring challenges against parodists and scare them off because of the cost of going to court. In the interests of free speech, it is perhaps better to allow all parodies regardless of merit or their purpose, provided they aren’t trying to be an outright copy of the original. We do after all take a similar approach in granting copyright in the first place – quality is not important because we can’t ever decide what is of good quality. Van Gogh infamously only sold one painting during his lifetime!
Obviously there are those who have concerns about such a change in the law. They might argue that authors should have control over their own work, and that parodies should only be permitted where the author or rightsowner is happy to licence the parody. The first thing to note here is the use of the term ‘rightsowner’ – the original author of a work is not necessarily the person currently in a position to authorise or refuse to licence parodies. Recording companies will buy the rights to a song as part of the recording contract, or the production company for a film, or publishers for a book. The author may well be happy with the idea of a parody but will have no power to grant a licence. Secondly, this argument depends upon the assumption that an author’s work is her ‘property’ and that she should have complete control over it. This is not the time to go into a detailed discussion of the purpose of copyright law, but there are basically two wide camps – those who feel that we grant copyright because the work is the author’s and that they own it, and those who say that granting control over copyright works for a specified period is a way of incentivising the creation of such works. Ideas can be copied an infinite number of times and used by many people at once, so that unless I can control the reproduction of my book or picture then there is little reason for me to create artistic things – I can’t make any money from it if I can’t control its distribution. However, although the law aims to encourage creative work it also does this only as far as necessary for the public good – copyright expires around 70 years after the death of the author, depending on the type of work, and we already have exceptions to the laws for various uses which are in the public interest such as educational use and criticism.
Your answer to the question of whether authors/rightsowners should be able to control the creation of parodies will largely depend on whether you see an idea of ownership as being key to copyright law, or whether you see it as a way of protecting a market for creative works for the public good. Any change needs to match the overall aim of the legislation or we have an incoherent set of rules which cannot be said to have any particular philosophy. Whilst this is a political topic, it’s also inherently legal – what is the aim of the law here, how shall we phrase it to get the result we want; how do we enforce it? Personally I see the law as aiming to support the creation of creative works for the public good, and because of the importance of parodies and pastiches in a democratic society (and the reluctance of rightsowners to licence such uses) I firmly believe the government cannot act quickly enough in bringing about a change in the law.