Gimme an evocative, different and funny parody but hold the discrimination

What are the essential characteristics of a parody under EU law?

Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and others: Case C-201/13

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.

What was the factual background to this claim?

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?

What is the nub of the case?

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:

  1. being original in its own right so that it cannot reasonably be ascribed to the author of the original work
  2. being humorous or mocking
  3. mentioning the source of the parodied work

What did the CJEU decide?

The CJEU, giving a broad definition of parody, decided:

  1. since the InfoSoc Directive does not define ‘parody’, ‘parody’ must be given its usual meaning in everyday language, taking into account its context
  2. the essential characteristics of parody are to evoke an existing work while being noticeably different from it and to constitute an expression of humour or mockery
  3. a parody need not display an original character of its own (departing here from the opinion of the AG), except it must display noticeable differences to the original work parodied
  4. it is not necessary that a parody could be attributed to a person other than the author of the original work itself, or that it should relate to the original work itself, or mention the source of the work parodied
  5. the exception for parody must strike a fair balance (fair balance is for the national court to determine) 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—if a parody conveys a discriminatory message (for example, by replacing the original characters with people wearing veils and people of colour), the rights holder has a ‘legitimate interest’ in ensuring that their work is not associated with such a message—in Deckmyn, the CJEU drew attention (para [30] of the judgment) to the principle of non-discrimination defined in Council Directive 2000/43/EC

The CJEU confirmed that the concept of parody is an autonomous concept of EU law and must be interpreted uniformly throughout the EU.

Where are we with the caricature, parody and pastiche exception under UK law?

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.

What should lawyers take from this decision?

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:

  1. the moral right of the copyright owner to object to derogatory treatment of the work
  2. the applicability of defamation laws to a parody scenario
  3. trade mark infringement (clients may decide to brand sanitise the parody)
  4. the application of the Berne three-step test (specifically, the legitimate interests of the author or rights holder must not be unreasonably prejudiced)

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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