Fun with Intellectual Property

Intellectual property law has never been a laughing matter.

Until now.

Having a sense of humour on the internet is fraught with many dangers, but, beyond the minefields of taste and offence, the wrong joke, using the wrong pop culture reference, could also get a comedian sued.

Using material from a song or a film in a parody, say, or having a clear reference to a copyrighted character in a skit or sketch, has all been legally actionable. The writer or film-maker is at the mercy of the often mercurial whim of the copyright holder as to whether they consider what is going on worth exercising their legal muscles to prevent.

As of 1st October 2015, however, the balance has swung strongly back in favour of the funnymen as the UK follows the European ruling in the case of Deckmyn v Vandersteen on 3rd September 2014.

Under the new ruling, a parodist is entitled to use or copy existing material so long as the parody is both fair, and is not in competition with the original. A parody, by EU definition, is a work that brings the original to mind whilst being different to it and, at the same time, being funny and/or intended as mockery.

Humorists therefore now have considerable legal protection against any attempt by the original creators/copyright holders to remove the parody, or to insist on changes to it prior to its publishing.

The change in the law has been welcomed by comedians and writers such as Graham Linehan (Father Ted) and creator of online video mashups Cassette Boy as being a major victory for freedom of speech.

However there is a another side to the issue as seen in the original Deckmyn case where the parody in question was a comic book image being parodied by an anti-immigration political party using it to poke fun at a rival politician. Under the law, if the parody was discriminatory then the owners of the original would have a legitimate interest in ensuring they could disassociate themselves from the parody, and could take action to suppress it.

There is also the requirement that a parody must be funny, which may lead to some interesting cases ahead where the Defendant’s case hangs entirely on their ability to make a specific judge laugh.

Picture of Luke Patel

Luke Patel

Luke Patel
Partner
Commercial Dispute Resolution Team
0113 227 9316
LPatel@LawBlacks.com
@LukeLawBlacks

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