BLACA seminar on parody – event review

by cpocock

Thursday, 13 March, Berwin Leighton Painer hosted the Spring BLACA seminar which turned around parody. This event was most topical in the light of the legislative revisions to the draft legislation and the parliamentary question on its advancement earlier this month.

The panel was divided in two groups, on the one hand Prof Martin Kretschmer (Professor of Intellectual Property Law at Glasgow University and Director of CREATe), Dr. Kristofer Erickson (Lord Kelvin Adam Smith Fellow in Social Sciences; CREATe) and Dr. Dinusha Mendis (associate Professor in Law and Co-Director of the Centre for Intellectual Property Policy and Management CIPPM) advocating for a parody defence. And on the other hand Jaani Riordan (Barrister at 8 New Square) was set the task of arguing against implementing a specific parody defence.

The first half of the conversation focused on the results of the empirical study carried out by CREATe on Copyright and the Economic Effects of Parody. The panel first offered a comparative review of the requirements countries use to judge a parody, setting out a list of nine different criteria used to decide whether or not the parody is an authorized use (more details can be found in ‘Study II’). The list is as follows:

  • Factor 1: if it is non-commercial;
  • Factor 2: if it does not have an adverse effect on the market for the original;
  • Factor 3: if it does not use more of the original than necessary;
  • Factor 4: if it adds some significant new creation;
  • Factor 5: if it represents a humorous or critical intention;
  • Factor 6: if it is directed at the work used;
  • Factor 7: if it does not harm the rights of the creator of the original work;
  • Factor 8: if it is sanctioned under the rules of social custom;
  • Factor 9: if it acknowledges the source of original work.

The practical applicability of each criterion was illustrated by instances where they have been employed by the respective national courts (e.g.: factors 7 and 8 as understood in the Court of Appeal of Amsterdam in the ‘Miffy’ case: Mercis B.V. /Punt.nl B.V., decision 13 September 2011, LJN: BS7825).

Following this background, the panel then set forward a detailed analysis of the data, its collection and interpretation (for more information on this aspect of the study I would refer you to their findings which can be found here). Based on a time specific snapshot of the top one hundred charts and their respective parodies and, for our purposes here, this study concluded that:

  • ‘There is no evidence for economic damage to rights holders through substitution: The presence of parody content is correlated with, and predicts larger audiences for original music videos’; and
  • An increasing amount of parodies are of a high quality (quasi-professional videos) and very creative.

The potential consequences of this finding are two-fold. The lack of economic harm and ‘market substitution’ character of the parodic videos would mean that a majority of the videos would qualify for the defence. Further, the suggestion that the parodies in fact help increase the viewing rate/ numbers was very interesting. The second element of this finding is the creative aspect of the parodies: this would mean that if the UK did indeed adopt a requirement for the use to be transformative it is very likely that a majority of parodic videos available would qualify for this defence and further benefit of their own separate copyright protection.

It seemed fair to conclude that in the light of these findings, a specific defence of parody would be in line with much of the practice of making parodies and would not render most material infringing. This would also suggest that the implementation of this defence would not have a negative impact on freedom of speech limitations as a majority of parodies would be found to amount to ‘fair use’.

 

The floor was then left to a very eloquent Jaani Riordan who argued the case against legislating for a specific defence of parody. Opening his statement by highlighting the social value of parody and its strong history in the UK, Riordan also pointed out how it is gaining increasing importance through social media.

Riordan first referred to the Oxford Dictionary’s definition of parody (which has not been updated since 1933) and structured his argument around the inherent uncertainty stemming from the terminology used in approaching parody.

Riordan put forward how the division of the term parody into ‘pastiche’ and ‘caricature’ and their seemingly interchangeable use is of no assistance in defining the scope of this defence in law. Definitional concerns also touch upon the overlap with other sectors such trade mark law with concerns of dilution, commercial aspects of the parodies (stream of profitable business revenue; suing for account of profits) and other problems such as the role Moral Rights should play (namely that of acknowledgement) within the defence of parody. Making prolific use of the case law, Riordan also showed how judicial uncertainty around the issue is very problematic, highlighting for instance the failure of free speech arguments in Ashdown.

Another problem that Riordan pointed to was how this defence might require the judges hearing the cases to ‘delve into the work itself’ and potentially exercise meritorious judgements which, he argued should be avoided at all cost: their role being to provide judicial and not artistic appreciation.

Finally, after a very visual presentation making extensive use of illustrations (a personal favourite being a portrait of Johnny Vegas currently on show at the National Portrait Galery and previewed here), Riordan made an appeal for more clarity and the need for the creatives involved in the production of parodies to understand the laws regulating their practice. The danger of such a lack of clarity would be the stifling effect on this socially beneficially activity.

Concluding on a most interesting Q&A session, and after both sides of the panel had made a good case for and against specific legislation on parody, the guests were invited to discuss these matters more informally around an apéritif.

 

Catherine Pocock is Assistant Editor QMJIP and LLM Candidate in the Centre for Commercial Law Studies, Queen Mary, University of London