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Are Parodies Protected Under Copyright Law?

Posted by Brandon Selinsky on Oct 4, 2014 10:29:45 PM
Brandon Selinsky

Is copyright infringement ever funny?

If you've ever watched TV, listened to the radio, or been to a movie, you have likely witnessed a parody, whether you were aware of it or not.  A parody is an “imitative work created to imitate or comment on an original work, its subject, author, style or some other target by means of satiric or ironic imitation.”  By its very definition, a parody draws upon an original work by either using the same scenes, plot, actors or music.

Parodies have always raised a variety of legal questions and international law has often given different answers.

How much of an original work can a parody artist take?  How much is too much?  Where is the line between creating a parody and copyright infringement on an owners’ original work?

The U.S. is Funnier

Under U.S. Copyright Law, a parody can be considered a “derivative” work protected from copyright infringement claims by the fair use doctrine.  In contrast, the law in the U.K. has historically provided that “[t]here is currently no exception which covers the creation of parodies, caricatures or pastiches.  Parodies of works protected by copyright in the U.K. require the consent or permission of the copyright owner” unless they fall under three different exceptions.

But the U.K. is Catching Up

Beginning only recently, the law in the UK is changing as a result of a new European Copyright Directive that will “allow the use of the material (parody) so long as it is fair and does not compete with the original version.” Additionally, the UK is implementing amendments to its Copyright, Designs and Patents Act that it will allow artists to use copyrighted material without permission for the purposes of “caricature, parody or pastiche.”  This is a striking change to U.K parody laws.

These new laws do not mean that artists in the U.K. now have a free-for-all to use any copyrighted materials, in any manner, without permission.  There are two key limitations on the new rules that serve to protect copyright owners.  

First, a copyright owner can still sue for copyright infringement if the parody “conveys a discriminatory message.” For instance if the parody changes the main original characters in a copyrighted film to KKK members, the holder of the rights has a right to make sure that their work is not associated with this type of image or message.  

Second, courts will still review each copyright lawsuit on a case by case basis and determine whether the alleged infringing article is in fact a parody; in other words, whether it “constitutes an expression of humor or mockery.”

Legal Advice on Copyrights and Fair Use

It is an exciting time for parody artists in the U.K. as this new directive lessens the threat of legal action.  However, what will be interesting to see is how a judge decides a parody is comedic or not. What is to happen to a parody artist if the judge presiding over the case has no sense of humor or a different sense of humor compared to the artists?  

We anticipate an explosion of humor and creativity coming your way from the U.K.  If you would like more information regarding the new U.K. copyright directive or international or U.S. copyright laws, contact the lawyers at Whitcomb Law, P.C.

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Topics: Intellectual Property