Have I Got Parody for You

Pete Bott

Pete Bott

A new law concerning the parody of copyrighted works came into force at the start of this month and the debates as to its effect have already begun.  Will it merely lead to more social comment and entertainment which incorporates parody, or will it have a wider effect by, for example, allowing more risqué forms of advertising?

In essence, the new law creates an exception to copyright infringement that allows the creators of original works to make “minor” use of other people’s copyright works for parody purposes without asking for permission.

Comedy writer Graham Linehan, who was behind the TV shows The IT Crowd and Father Ted, stated that the old law had been “quite restrictive” in his experience: “It seems harder to do innocent mentions of anything to represent something that is part of our lives,” he told the BBC.

The new law subjects the work to the idea of “fair-dealing” (Explanatory Memorandum Article 7.10.3), by striking the right balance between the original and the parody: “The only, and essential, characteristics of parody are, on the one hand, to evoke an existing work while being noticeably different from it and, on the other, to constitute an expression of humour or mockery”.

The idea of fair-dealing will be subject to the Berne three-step test as set out in the Berne Convention (Article 9): “…the exception must be confined to certain special cases, must not conflict with normal exploitation of the work, and must not prejudice the legitimate interests of the rights owner”.

The above means that, for example, the effect on sales of the original work may be taken into account in the legislation and if the new work is effectively a direct copy of the original work, then it is less likely to be “fair”.  Ultimately, the courts will have to balance these factors in each case and it therefore appears that the effects of the new law may rest with a court’s sense of humour.  Expect conflicting judgments!

Pete Bott
Solicitor
Music, Media & Entertainment Department
PBott@LawBlacks.com
0113 227 9284
@PeteLawBlacks

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