Exception for use of copyrighted material in parody is the flavour of the season in UK. Since the recommendation in Hargreaves review in 2011, statutory protection for use in parody has been taken up and is likely to come into effect later this year. What is parody and when does it cease to be fair use are intriguing questions and could yield as many answers are there are fact situations.
Meanwhile, the CJEU (Johan Deckmyn & ors v. Helena Vandersteen& ors, 3-9-2014) recently had occasion to consider what can be parody. The Belgian court had a few questions : should parody display originality, seek to be humorous or to mock, regardless of whether any criticism thereby expressed applies to the original work or to something or someone else and whether concept of “parody” an autonomous concept of EU law.
The point of contention between the parties to the suit - heirs of the author of copyright comic book ‘ Suske en Wiske’ and the defendant belonging to a political party was the drawing used in a calendar distributed in 2011 which resembled the cover of one of the comics with a person in white tunic dropping coins in a street which are picked by other people. In the parody version, the main character resembled the Mayor of Ghent and the people in the street were shown to be of various race/country. The heirs objected to the ‘parody’ on various grounds including the discriminatory character of the message conveyed, use of original in large parts which was not necessary and so on.
Parody is necessarily an imitative work and will therefore include some feature(s) which remind a person of the original work. The CJEU opined that a work of parody displays an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work. However, to balance the interest of the user of copyrighted work and the rightholders, the national court has to determine whether in the circumstances of the case the use was fair. The heirs, the court said had a legitimate interest in ensuring that a discriminatory message (placing people of different colour/ wearing veils in the drawing) is not associated with the original work.