‘His Name is James Bond’: New UK parody exception- A licence to kid?

by Lisa D. Rhooms

For the last five decades, James Bond, a character of author Ian Fleming’s book series, has been beloved by people from the UK and the world over, as the charming, suave MI6 agent, serving at her Majesty’s pleasure, and embarking on secret spy missions to defeat nefarious villains and malevolent shadow organisations. Not only are Ian Fleming’s books about Bond works of copyright, but also the character himself. Over the years, the character, James Bond, has acquired such distinctiveness that there are certain qualities which are known about him. In the United States case of DC Comics v. Mark Towle[1], the judge explains this concept of a character achieving a copyright distinct from the work in which they can be found. She says, quoting from the Metro-Goldwyn-Mayer case[2] that:

 

“The character “James Bond” qualifies for copyright protection because, no matter what the actor who portrays this character looks like, James Bond always maintains his “cold-bloodedness; his overt sexuality; his love of martinis ‘shaken, not stirred;’ his marksmanship; his ‘license to kill’ and use of guns; his physical strength; [and] his sophistication.”[3]

 

In 2011, some of these qualities of James Bond were parodied in a profanity-riddled video that  some might consider funny, while others might consider to be appallingly rude, available on YouTube with a quick search of the key words ‘His name is James Bond’ (for those not too easily perturbed by swear words and a few pejorative terms). In this video, the creators, Sean McCormick and Rhys Ptolemy, took clips from the various Bond films, from Connery to Craig, and laid a track with lyrics written by them to the original Bond theme by Monty Norman. In the video, as the clips play, the lyrics of the song describe Bond as a drunk and a serial womaniser, who is destructive and has wanton disregard for anyone and anything that gets left in the wake of his missions. The basic premise if the video is that if the character Bond was a real person, he might actually be quite disliked. Following this video being uploaded, it was taken down due to infringement of the copyright of Metro-Goldwyn-Mayer Studios Inc. and Danjaq, LLC, but has since been re-uploaded. The question now at hand is, would the video have qualified as a parody, if at the time it was uploaded, the UK did in fact have a parody exception? And now that that UK does have the parody exception, what does that mean for works such as ‘His name is James Bond’ and other parodies?

After much consultation and several recommendations suggesting same, the UK Government introduced the Copyright and Rights in Performances (Quotation and Parody) Regulations[4] which came into force in October 2014. This regulation amended the Copyright Designs and Patents Act of 1988[5] to add section 30A and schedule 2A, which deal with parody. For the purposes of this article, Section 30A (1) is most important and states “Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.” So now that parody does not infringe copyright, the next question then, is what constitutes fair dealing? There is no definition of what is fair, but certain criteria have been considered, including the percentage of work used, how it is used, and whether the use prejudices the economic, or other value of the original work.[6]Additionally, the UK regulation is silent on what exactly will constitute a parody. Must it only be funny or is there more? The Court of Justice of the European Union tackled this issue recently[7] and came to the conclusion that in order for a work to be a parody, it must draw the consumers’ mind to the original work, while remaining itself distinct, and must also be funny and poke fun at the original work.[8] Thus, considering ‘His name is James Bond’, was the use of the copyright holder’s work too significant? Probably not, as it is a video of less than two minutes, with different clips from different films. Is it likely to prejudice the original work economically or otherwise? Not likely. Is it a distinct work that calls to mind the original? Yes. Does it poke fun at, or mock the original work? Surely. In my opinion had ‘His name is James Bond’ been uploaded when the parody exception was in force, it more probably than not would have been covered by the exception. Now, what of other works?

It is clear that not everything that pokes fun at a copyright work will qualify as parody, as it will firstly need to fall within the conceptualisation of what a parody is, and will secondly need to constitute fair dealing. It is therefore necessary to recognise that the exception is not meant to facilitate a blanket right to kid around with copyright holders’ work. In fact, with the law as new as it is in the UK, the limits will have to be tested. What will and will not then be considered a parody will have to be dealt with on a case by case basis, and will have to be measured as careful as James’ signature gin martini.

 

[1] No. 13-55484 (9th Cir. 2015)

[2] Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., 900 F. Supp. 1287, 1295–96 (C.D. Cal. 1995)

[3] DC Comics (n.1) 14 (Judge Ikuta)

[4] Copyright and Rights in Performances (Quotation and Parody) Regulations, 2014

[5] Copyright Designs and Patents Act, 1988

[6] Kostyantyn Lobov, ‘New UK copyright exception for parody enters into force’ (2014) <http://www.harbottle.com/new-uk-copyright-exception-parody-enters-force/&gt; accessed January 29, 2016

[7] Deckmyn and another v. Vandersteen and others (C-201/13)

[8] Ibid [33]