The parody exception – having the last laugh

With the introduction of a parody exception under UK law on 1 October 2014, it is important to understand what a parody is. In lay terms, you know it when you see it.  In legal terms, it is not so different, it seems.

The new UK exception derives from EU law.  We now know that, as a legal term of art, parody must be given the same interpretation across the EU.  A parody needs to evoke its source, while being noticeably different, and it must be humorous or mocking.  This is the conclusion of the Court of Justice of the European Union (CJEU), which has now issued a ruling in the Deckmyn case (a referral from the Belgian courts), largely following the May 2014 opinion of the Advocate General.¹

The CJEU also confirmed that the concept of parody is not subject to any of the other conditions posed in the question referred.  Accordingly, a parody need not display an original character of its own (other than displaying noticeable differences from the original work).  Nor does it need to be reasonably attributable to a different author; nor need it relate to the original work or mention the source of the parody.

The CJEU judgment also directs any national court applying the parody exception to bear in mind the purpose of the parody exception, i.e. to ensure a fair balance between the interests of rights-holders and users’ freedom of expression.

Background

The Deckmyn case raised a number of questions relating to the parody exception under Article 5(3)(k) of the Copyright Directive (2001/29/EC) and how this should be applied. 

Copyright infringement proceedings were brought in the Belgian courts against Johan Deckmyn, a politician of the far-right Vlaams Belang political party and the Vrijheidsfond, the association responsible for the party’s funding.  At a City of Ghent reception in January 2011 to celebrate the New Year, Mr Deckmyn handed out calendars with a front cover depicting the Mayor of Ghent throwing coins to citizens appearing to be from diverse religious and ethnic backgrounds.  The drawing was based on a famous Suske en Wiske cartoon (known in English as Spike and Suzy), in which a cartoon character was shown wearing a white tunic and throwing coins to townspeople who were trying to pick them up.  The holders of copyright in the cartoon, the heirs of the comic’s author, Willebrod Vandersteen, brought successful proceedings for copyright infringement in the Belgian courts. 

The defendants appealed, arguing that the calendar image should fall within the exception for parody, caricature and pastiche under the Directive, as implemented by Article 22(1)(6) of the Belgian Copyright Act 1994.  Mr Vandersteen’s heirs, however, argued that the derivative work could not fall within the parody exception because of its lack of originality.  They also alleged that the drawing conveyed a racially discriminatory message, with which the court should not allow the work to be associated.  The Brussels Court of Appeal granted an interim injunction preventing further distribution of the calendar.  Perceiving an absence of consistency in the legal tests for the parody exception, it decided to refer to three questions to the CJEU:

1. Is the concept of parody an independent concept under EU law?
2. If so, must a parody satisfy the following conditions or conform to the following characteristics:
   1. displaying an original character;
   2. in such a way that the parody cannot reasonably be attributed to the author of the original work;
   3. with an intention to provoke humour or to mock, regardless of whether the criticism is directed at the original work or at something or someone else; and
   4. mentioning the source of the parodied work?
3. Must a work satisfy any other conditions or conform to any other characteristics to be capable of being classified as a parody?

CJEU decision

Question 1 – is parody an independent concept under EU law?

According to the CJEU, it is clear from case law, including Padawan,² that any provision of EU law that refrains from defining or expressly referring to Member States for the purpose of determining its meaning and scope must generally be given an autonomous and uniform interpretation throughout the EU, having regard to the context of the provision and the objective pursued by the legislation in question.  The fact that the parody exception provided for in Article 5(3)(k) was an optional one did not alter this principle: an interpretation that allows Member States to determine the limits freely would be incompatible with the objectives of the Directive.  Accordingly, the CJEU found that the concept of parody is an autonomous concept of European law.

Questions 2 and 3 – must a parody satisfy certain conditions?

The CJEU considered questions 2 and 3 together.  In essence, the CJEU created a two-step test for a national court in applying the parody exception.

1. The new work must fulfil the two essential requirements of parody

The Directive itself does not define parody.  The CJEU held that the meaning and scope of the term must be interpreted in accordance with its usual meaning in everyday language, taking into account both the legislative context in which the term is used and the purpose of the legislation.

The CJEU adopted a wide definition of parody.  It followed the opinion of the Advocate General, confirming that there are only two essential characteristics of a parody:

1. it must evoke an existing work, while being noticeably different from it; and
2. it must constitute an expression of humour or mockery.

The CJEU found the other criteria cited in the Belgian court’s referred questions to be irrelevant: it is not apparent, either from the wording of the Directive or in the way that the term “parody” is used in everyday language, that the concept is subject to any other conditions. As such, the CJEU left it to the national courts of the Member States to decide on a case-by-case basis whether a parody is noticeably different from the original work and whether it constitutes an expression of mockery or humour.

2. A fair balance must be struck between the rights of copyright owners and users

The CJEU noted that the objectives of Directive 2001/29 include giving effect to fundamental rights and freedoms (as apparent from recital 3 to the Directive).  In particular (as stated in recital 31), in providing for exceptions to copyright, the Directive seeks to achieve a “fair balance” of rights and interests between rights-holders and users. 

So, a national court must, in applying the parody exception, strike a “fair balance” between:

1. the interests and rights of copyright owners and performers; and
2. the freedom of expression of users of copyright works,

in light of all the circumstances of the case. 

Those circumstances could include discriminatory intent on the part of the users.  EU law, including Directive 2000/43, prohibits discrimination on racial and ethnic grounds.   The CJEU commented that rights-holders have, in principle, a legitimate interest in ensuring that a copyright work is not associated with a discriminatory message, and so in preventing the work from being used in a parody.  The CJEU made it clear that it is for the national court to determine whether (taking any such discriminatory intent into account) a fair balance would be preserved between rights-holders and users by applying the parody exception.

Comment

Despite emphasising the uniform nature of the concept of parody across the EU, the CJEU has effectively left a margin of discretion to the national courts in applying the parody exception at local level.  Whether the two-step test is met will be a question of fact in each case, and the circumstances of the case will be contingent on a factual assessment of the distinctiveness of the parody and its humorous/mocking intent.  Inevitably, both criteria will be understood by reference to local traditions of comedy – which may come as a relief to users of copyright works (such as producers of comedy programmes), given the notorious differences in “sense of humour” between different European countries.  It does mean, however, that what is considered funny in one Member State may not in another, so users of copyright works may find it hard in practice to be certain that a work will fall within the various parody exceptions across the EU (where actually adopted).

From a rights-holder perspective, the requirement for a parody to be “noticeably different” will be welcome.  A parody that “sails too close to the breeze” (as the creative industries often describe slavish copies) may well end up being substitutional of sales of the original work.  Rights-holders can at least be assured that straight “sound-alikes”, for instance, will not fall within the exception.  The status of “style-alikes” remains uncertain, however: those could well be noticeably different, but perhaps only to an expert (such as a musicologist).  While the CJEU’s judgment suggests an objective standpoint for “difference”, it remains unclear whether the observer is supposed to be an informed observer or not.  The second criterion (expression of humour/mocking) will be an important element in excluding “style-alikes” that are really piggy-backing on an author’s work, without voicing a separate expression.

It is also unclear whether the two-step test is meant to apply to “caricature” and “pastiche” as well, since the CJEU does not comment specifically on those concepts in the decision.  It seems likely that caricature would follow along similar lines, but it is not so obvious that “pastiche” requires a comedic or mocking intent.  This could pose a risk for rights-holders in the area of “style-alikes”, and the test of “noticeable difference” may be of central importance in excluding over-literal copying in the context of pastiche.

Equally, rights-holders may be concerned about the potential for loss of revenue.  In the music industry, for instance, it is common for the author of the original work to be treated as the co-author of the parody, given that musical parodies often literally interpolate several elements of the original work (partly as the success of the parody may well rely heavily on listeners’ ability to identify the original work).  In light of this case, it seems that the “noticeable difference” criterion could still be used by courts to preserve the author’s interest: if, for example, the music is not noticeably different (even if the lyrics are), the music will not fall within the exception, and the parodist will still need to negotiate a share of overall copyright in the parody for the original author/publisher.  At the same time, the inherent uncertainty in applying laws that are a question of fact in each case may encourage parodists to seek clearance as a precautionary measure, and it seems likely that a commercial pattern will become established in due course (and perhaps not so different from current practice).

In the meantime, it is hard to say how the “fair balance” test will work in practice.  It seems somewhat circular on the face of it: the exception was, in itself, introduced to provide balance to copyright, so it might seem surprising that the national court is then expected to weigh up fairness as such in applying the exception (beyond merely being satisfied that the essential requirements of parody are fulfilled).  Perhaps the discrimination example most neatly explains why a balancing exercise is still required: there may be factors to consider beyond the competing human rights in property and freedom of expression, and discrimination (or other unlawfulness) is a case in point.  Perhaps it may also be necessary to assess whether the parody borrows too many elements from the original to deprive the owner of remuneration from the adaptation (although the CJEU does not comment on that question specifically).  At the same time, for UK courts, there will be a need to assess “fair dealing” in the context of the new exception (which seems to be a similar concern and comparable to the Belgian requirement for “fair practice”).

Either way, as with any law that turns on a factual assessment in each case, it could take some time (and perhaps further test cases) before legal practitioners can advise owners and users on the exact scope of the parody exception, and whether clearance is required in a given case.  Given the commercial value of successful spoofs, that may not be a laughing matter.

Ed Baden-Powell, Partner, Michael Simkins LLP

Juliane Althoff, Associate, Michael Simkins LLP

Article written for the Entertainment Law Review

1. Johan Deckmyn, Vrijheidsfonds VZW v Helena Vandersteen and Others (Case C-201/13).
2. Padawan SL v Sociedad General de Autores y Editores (SGAE), Case C-467/08.