Parody is in essence an imitative work, created purposely with a satirical or ironic, often humorous, intent to lampoon a work of art, be it literary, music or film.
Parody can take the shape of a slight alteration to wording or a reworking of a familiar music composition into another, in a bid to take that piece of poetry or music to a different level or context.
Intellectual property issues necessarily arise when a parodied work of art is used insofar as parodies involve the use of original works of art to create new ones. In this sense, the parodist is at the same time a creator of a work of art and a user of an original work of art. This makes parody fraught with legal complexities. For this reason, the question arises whether parody is afforded special treatment under the law and, if yes, in what form should such parody be.
The directive on the harmonisation of certain aspects of copyright and related rights in the information society attempts to reach a balancing act between the rights and interests of the different categories of right holders. The Copyright Directive provides that authors have the exclusive right to authorise the reproduction and communication to the public of their works. Back in 2001, this directive permitted member states to implement an exception to these exclusive rights if original works are used for the purpose of caricature, parody or pastiche, even without the right holders’ consent.
Parody is fraught with legal complexities
The Court of Justice of the European Union (CJEU) was recently requested to give a preliminary ruling on the nature and scope of parody. Closely followed by intellectual property and free speech enthusiasts, this much-awaited ruling related to a Belgian cartoonist who created the comic strip characters Spike and Suzy. A member of the Flemish nationalist political party edited and distributed a party calendar, some pictures of which spoofed the cover of a Spike and Suzy story. The right holders of the Spike and Suzy cartoon brought an action claiming breach of copyright by the political party.
At national level, the Belgian court determined that, since the cover of the calendar contained an adapted cover of the cartoon album of Spike and Suzy and the defendants had acted without the consent of the right holders, there was a breach of copyright. The political party appealed on the grounds that the artwork was a political cartoon and, therefore, a permitted parody. The Court of Appeal recognised that there was no uniformity in the legal tests for establishing a parody and referred the matter to the CJEU.
The opinion of the Advocate-General preceded the ruling of the Luxembourg court. In May, the Advocate-General opined that parody is an autonomous concept under EU law and, while it was discretionary, once recognised by member states under their national legislation, parody should be applied and interpreted with uniformity. For a work to constitute a parody, it must imitate the original in a non-confusing manner and must be intended as a spoof or burlesque. In line with the modern interpretation of parody, the Advocate General submitted that the target of the parody need not be the original work but may be third parties.
In its judgment delivered earlier this month, the CJEU ruled, in conformity with the analysis of the Advocate-General in his opinion, that ‘parody’ is an autonomous concept of EU law, which should be given uniform interpretation throughout the Union. The optional character of the exception does not rule out the principle of uniform application of EU law.
The court then embarked on a definition of works of parody and established that 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 and mockery.
The court also set ground rules for satirists and established that, when determining whether original works can be legitimately copied under EU law, a balance must be struck between the rights of creators to publish their views and opinions through parodies and the rights and interest of the right holders to the original works being parodies.
In that context, the court held that, if a parody conveys a discriminatory message, the holders of the rights to the work parodied can demand that their original works be disassociated from those parodies. Parodies that are contrary to the fundamental values of society would not be permitted.
Although the CJEU has set out key criteria to establish if a work is a parody and called for uniformity in the assessment of parodies, there is still significant scope for the courts of member states to determine which parodies will pass the test.
Josette Grech is an associate at Guido de Marco and Associates.