Remember when the Moshi Dance, by Mind Candy’s ‘Lady Goo Goo’, was injuncted back in 2011?
Disappointed CEO Michael Acton Smith was quoted in Licensing.biz saying, "It was all done in the name of fun and we would have thought that Lady Gaga could have seen the humour behind this parody."
With a recent change in the law that will allow more unlicensed spoofs in the UK, and guidance from the European court on the meaning of ‘parody’, this is likely to be a hot topic for 2015.
While Mind Candy were licking their wounds, the president of Lucas Licensing announced at BLE that the future for the Star Wars franchise included an official parody project. Developed with Family Guy’s Seth Green, the franchise was finally catching up with the many unofficial spoofs of the movie (including Family Guy’s own It’s A Trap).
In fact parody has long been popular in licensing. Kids’ TV show Zoo Factor, from the writers behind Pop Idol, takes the mickey out of the talent show format, while Funko recently announced its licence of Garbage Pail Kids, a parody of Cabbage Patch dolls.
Parodies can breathe new life into a property, and give a topical edge to marketing. One of my first jobs as a junior lawyer in the early 90s was to enforce the rights in the Teenage Mutant Ninja Turtles against counterfeiters. Over 20 years later, their return was announced with a video of Nickelodeon staff performing a parody of Psy’s hit Gangnam Style.
So what has changed as far as the law in Europe goes? The focus of developments has been on copyright, where EU law has long allowed Member States to choose whether to introduce a ‘parody exception’. Essentially, this means that a qualifying parody can be produced even if it makes use of copyright material. Belgium, France and the Netherlands are examples of countries that adopted the exception a while back, and in October 2014 they were joined by the UK.
The exception extends to any ‘parody, caricature or pastiche’, provided that it is ‘fair dealing’. No further definition is given, although fair dealing is a familiar concept to copyright lawyers. It is unlikely to be fair dealing, for example, to reproduce long sections of script from a TV show, or the whole of a piece of recorded music.
There is another significant point for businesses: rights holders cannot impose a contractual restriction on licensees to prevent parodies. Nor can they rely on the usual prohibition on ‘bringing the property into disrepute’ or a general restriction on derivative works. This points to a need for more creative contractual solutions perhaps.
The other significant recent development in the EU parody exception was the ‘Deckmyn’ decision of the EU Court of Justice in a case that started in Belgium. It was about a political cartoon published by a right-wing party, based on an image from the Belgian comic-book, Spike and Suzy. Its anti-immigrant overtones were considered particularly objectionable. The Belgian court was not sure if it was a permitted parody, so they asked the EU court for guidance. The court said that a permitted parody must (a) evoke an existing work whilst being noticeably different from it, and (b) constitute an expression of humour or mockery. It also said that the arguably racist aspects were relevant to the balancing exercise that the Belgian court must now undertake, in reaching a decision on the alleged copyright infringement.
Of course, we must always consider whether a parody would have infringed copyright in the first place. Merely evoking the feel of a movie property, for example, riffing on characters’ features and the style of the music, may not impinge on copyright territory. Trickier issues could arise when the parody uses a copyright work (such as a cartoon character or piece of music) to parody a different copyright work (such as a movie). The court in Deckmyn didn’t provide guidance on this.
It is also worth bearing in mind that copyright isn’t the only intellectual property right that may be relevant. There is no express parody exception for trademark infringement, although there has been talk of introducing one across the EU. This is a key issue for rights holders, because the brand is where reputation lies. One potential problem with enforcing trade mark rights against a parody is the question of confusion. If the infringing name or logo is not the same as the registered trade mark, the owner must prove a likelihood of confusion, and that may be a struggle where the competitor product is an obvious parody (although there are additional safeguards for very well-known brands). This issue is reflected, for example, in the take-down policies of social media sites such as Twitter, which permit parody accounts subject to requirements such as identifying the account as a parody or fake.
There are some big challenges for businesses in getting this right. But at least we can enjoy seeing British judges (known for their humour) decide what’s funny.
Jeremy Morton is a solicitor who advises in the specialist area of intellectual property law, which includes copyright, brands and patents.