Statutory Protection for Parodies
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By Uday Duggal
Introduction
In 2009, musicians Jay-Z and Alicia Keys released the song ‘Empire State of Mind’, topping music charts worldwide. Peppered with affectionate references to city landmarks and New Yorkers, a critic deemed the song ‘an epic paean to New York’.
Its chorus: ‘In New York, concrete jungle where dreams are made of (sic), there’s nothin’ you can’t do’.
Several months later, UK filmmaker M-J Delaney released a parody of the song on Youtube, ‘Newport (Ymerodraeth State of Mind)’. The parody replaced the original’s po-faced eulogising of New York with references to Welsh celebrities and the city of Newport (the rewritten chorus: ‘In Newport, concrete jumble, nothing in order... chips, cheese and curry make you feel brand new’). The parody went ‘viral’, attracting over two million views until 10th August 2010, when YouTube removed the parody pursuant to a copyright claim.
The episode highlighted an intriguing lacuna in the UK’s copyright regime, one effectively leaving Newport’s creators with no recourse. The issue was that the UK – so often associated culturally with wit, satire and irony; a nation purportedly bearing sarcasm and self-deprecation in its very genes – offered no statutory protection to parodies. Courts offered little help; as shall be shown, parodic use was not considered a valid defence to copyright infringement.
The takedown of Newport, an evidently popular home-grown work, subsequently served as a prominent example in the case for a UK parody ‘exception’, protecting parodies that would otherwise infringe copyright. The UK’s Copyright, Designs and Patents Act 1988 (‘CDPA’) confers an exclusive right upon the copyright-owner (often the author, although copyright may be assigned elsewhere) to authorise use of the work for various ‘acts restricted by copyright’, including copying of the work, performance, broadcasting, and issuing to the public. Copyright in a work is infringed by a person engaging in such restricted acts without the licence of the copyright-owner. As we shall see, parodying copyright-protected work typically involves the (prima facie illegal) copying, alteration and use of such work.
Without a parody exception, copyright-ownership is relied upon to stifle parody. However, a successfully executed parody may be understood as a new work in which society perceives independent value (criticism, humour or other pleasure), as Newport arguably provided. Notably, EU Directive 2001/29/EC (the ‘InfoSoc Directive’)10 provided a list of possible exceptions to copyright, including an exception for ‘use for the purpose of caricature, parody or pastiche’. However, inclusion of the exception was left, and remains, at the discretion of member states. Eventually, in 2014, the CDPA was amended, with s.30A now providing an exception for the three genres above. This dissertation specifically focuses on parody, although there will be a brief discussion of parody’s overlap with caricature and pastiche.
Chapter I of this dissertation will explore the background to the exception, and outline two broad questions regarding its operation: which works are to be regarded as parody, and how is the exception limited (with regard to fair dealing, and moral rights). A vital source of guidance will be the recent Court of Justice of the European Union (CJEU) judgment in Deckmyn v Vandersteen (Deckmyn), the first case to be referred to the CJEU on the parody exception as contained within the InfoSoc Directive. Advocate-General Villalón’s Opinion (the ‘AGO’), which preceded the full judgement, will also be considered. The key aspects of Deckmyn will be discussed, picking out contentious areas which the judgment has failed to shed light on, or itself created, in relation to the two questions outlined above.
Chapter II then expands on the issue of ascertaining which works fulfil the definition of parody . It analyses Deckmyn’s conceptualisation of parody, particularly the requirement that parodies constitute ‘an expression of humour or mockery’. Significantly, this hurdle invites the question of how to determine what is deemed humorous, a complex and potentially arbitrary inquiry. It will furthermore be argued that parodies without an overtly humorous or mocking intention may also be deserving of protection. Finally, as a case study, it is arguably still unclear if, using Deckmyn’s definition, the parody exception would have an effectual application with music parodies relying on the original instrumentation, as was the case with Newport.
Chapter III then explores a second contentious area, moral rights in relation to parody. With the barrier of copyright removed, moral rights are now expected to apply in certain situations where authors may have a legitimate interest in suppressing a parody, notwithstanding it fulfilling the definition of parody (laid down in Deckmyn). This may arise where, for example, a parody associates the original work with discriminatory content. However, it will be argued that the UK’s present moral rights framework is insufficiently developed for its new remit following the introduction of the parody exception.
Both chapters advance approaches to alleviate concerns posed by the aforementioned issues. These are aimed at creating an environment wherein the exception is robust, and lives up to the reasons behind its introduction. There must, however, simultaneously remain ways to enforce the valid claims of copyright-owners and authors, in situations where a parody unjustly prejudices their interests.