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What are the essential characteristics of a parody under EU law?
The Court of Justice of the European Union (CJEU) has decided that the essential characteristics of a parody within the meaning of Directive 2001/29/EC, art 5(3)(k) (the InfoSoc Directive) are to evoke an existing work while being noticeably different from it and to constitute an expression of humour or mockery. A parody need not display an original character of its own except it must display noticeable differences to the original work parodied. The exception for parody must strike a fair balance between the interests and rights of authors and other rights holders and the freedom of expression of the person who wishes to rely on that exception.
The background to this case—in which the front cover of a comic book was parodied—is covered comprehensibly in our analysis covering the AG’s opinion: Deckmyn—should a parody be LOL or anything else for that matter?
Whether a work benefits from the parody exception is important because copyright (moral rights and trade mark) infringement may occur when a parodic work is made.
The CJEU was asked to clarify the conditions or other characteristics that a work must fulfil in order to be classifiable as parody, such as:
The CJEU, giving a broad definition of parody, decided:
The CJEU confirmed that the concept of parody is an autonomous concept of EU law and must be interpreted uniformly throughout the EU.
In the UK, the exception for caricature, parody or pastiche is not yet in force—leaving creators liable for copyright infringement if even a small amount of copying (that satisfies substantiality requirements) takes place, when making a parody work.
The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 were due to come into force on 1 June 2014, but are now expected to come into force on 1 October 2014. In implementing the InfoSoc Directive, art 5(3)(k), the regulations will permit an exception in the case of use for the purpose of caricature, parody or pastiche providing that use is fair dealing (note ‘fair dealing’ is not a requirement under the InfoSoc Directive, art 5(3)(k)). To the extent that any term of a contract seeks to prevent or restrict the making of a personal copy in accordance with this exception, that term will be unenforceable.
When the exception for caricature, parody or pastiche comes into force in the UK, lawyers should advise clients considering the use of parody (in, for example, advertisements) not to consider the parody exception in isolation. The exception will not affect:
Lawyers should consider advising clients that there are areas that are likely to require clarification from English courts such as what is ‘humorous’ and in defining the scope of ‘legitimate interests’. It may, in many cases, be difficult for lawyers to gauge clients’ prospects of success—ie whether a particular message is discriminatory. This is because this assessment carries an element of subjectivity, cultural perceptions of such issues can change over time, and cases may often be heard years apart.
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