The parody exception to copyright infringement
Guardian News & Media Limited (GNM), the owner and publisher of The Guardian newspaper, recently took legal action to stop the use of GNM's contributor photographs by a website that was generating parodies of Guardian headlines.
The website (once available at https://www.guardianmeme.com/, now only accessible via the Wayback Machine) allowed users to write their own parody op-ed headlines and select the byline of a Guardian contributor, complete with their Guardian byline photo. The result was an authentic-looking parody headline, presented in The Guardian's house style.
One particular imitation headline featured Labour MP David Lammy's byline and photo alongside a parody headline with racist undertones. The parody headline was shared widely on social media with the hashtag #trollingtheguardian in July and appears to have been taken as genuine by some, although it was swiftly identified as fake by the Reuters Fact Check team.
In August 2020, GNM issued a take down notice to the hosting providers of the site, alleging that the site's use of Guardian contributor photos in the parody headlines infringed GNM's copyright in the photos. The take down notice also required the host to disclose the details of the site owner, so that further legal action could be taken against this individual/entity. As stated above, the site has now been taken down, but it is worth considering whether the site's use of the photographs may have fallen within the parody exception to copyright infringement.
Exceptions to copyright infringement under UK law: caricature, parody or pastiche
In October 2014, the UK amended the Copyright, Designs and Patents Act 1988 (CDPA) to provide for a ‘fair dealing' exception to copyright for the purpose of caricature, parody or pastiche (section 30A). This exception means that, in principle, it is possible to use copyright-protected material to create parodies without having to obtain permission from the rights holders to do so.
It is important to note that this exception only permits use of copyright works for the purposes of caricature, parody, or pastiche to the extent that such use can be considered ‘fair dealing'.
UK government guidance gives the following examples of use that would generally fall within the parody exception:
- a comedian may use a few lines from a film or song for a parody sketch;
- a cartoonist may reference a well-known artwork or illustration for a caricature; or
- an artist may use small fragments from a range of films to compose a larger pastiche artwork.
In contrast, using an entire song as the soundtrack to a parody video would not fall within the exception.
However, there is no statutory definition of the term ‘fair dealing' – what is considered to be fair dealing will differ in each case depending on all the circumstances. ‘Fair dealing' is assessed globally, and some of the factors that may be considered include:
- substantiality: the amount of the original work that has been used in the parody;
- necessity: whether it was necessary to use so much of the original work, or to reproduce the work at all, when creating the parody; and
- reputational harm: whether the parody will be harmful to the reputation of the rights holder or creator of the original work.
Essential characteristics of parody
In the leading EU judgment on parody ( Deckmyn and another v Vandersteen and others, Case C-201/13), the ECJ found that the concept of parody must be considered in light of its usual meaning in everyday language. Furthermore, the court indicated that the essential characteristics of parody are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery. The court also highlighted the need to strike a fair balance between the rights holders of the original work, and the freedom of expression of the maker of the parody.
In this case, GNM's complaint was solely in relation to infringement of copyright in its contributor photos, as the website was using the photographs in their entirety, without GNM's permission.
The site used the contributor photos in the same way they are used alongside real headlines in The Guardian. The use of the photos alongside the parody headlines was therefore not noticeably different from the original photographs and, in fact, added to the impression that the parody headlines were authentic Guardian headlines. The public reaction to the David Lammy parody headline in particular demonstrated that the use of the real contributor photos led to confusion over the authenticity of the headline, and therefore there was a real risk of reputational harm to GNM (and its contributors), should the parody mistakenly be deemed genuine. Taking these factors into account, it seems unlikely that a court would find that the website's use would fall within the parody exception.
If the site had wanted to avoid copyright infringement risk, one possible solution may have been to create its own byline images for the contributors - perhaps using caricatures of the original photos. A caricature could evoke the original image while being noticeably different from it, and may be an original work capable of attracting its own copyright protection.
It should be noted that there are other potential causes of action in relation to parodies, such as a creator's moral right not to have their work subjected to derogatory treatment, the right of publicity, and defamation, but these are beyond the scope of this
Originally published by Marks & Clerk, October 2020
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