The UK Intellectual Property Office is consulting on key changes to our copyright laws. Following an EU directive, the way was clear to introduce a “parody” defence for the first time in the UK, but was the “IPO” prepared to countenance this? Mark Smith files an original report.
Topic: Intellectual Property
Who: Intellectual Property Office
When: January 2010
Where: UK
Law stated as at: 23 January 2010
What happened:
In January 2008 the Intellectual Property Office (IPO) launched the first stage of a two-part consultation examining the recommendations regarding copyright exemptions which had come out of the Gowers Review of Intellectual Property. The proposed exemptions were designed to improve access to and use of copyright works. In its consultation paper the Government sought opinions on how the recommendations might operate and suggested a number of opinions.
The results of the first consultation have now been analysed and the second stage was launched on 11 December 2009. It contains detailed proposals on several new copyright exemptions, including draft legislation, and discusses in detail the responses received to the first consultation.
One area of note is that, while the Gowers Review recommended creating an exemption to copyright infringement for works made for the purposes of caricature, parody or pastiche, and this was proposed in the first consultation, the Government has decided not to move forward with this exemption.
Existing law
There is currently no exemption in UK copyright law specifically covering the creation of parodies, caricatures or pastiches of others' works. Whilst there haven't been any recent cases of note in this area, two cases from the 1980's provide very useful authorities.
In Schweppes Ltd v Wellingtons Ltd [1984] F.S.R. 210 the claimants claimed infringement of their label for Indian tonic water. The defendants marketed and sold a bubble bath product called Schlurppes, which was described on the bottle as being a "tonic bubble bath", and argued that their label was a joke in the nature of a parody.
The labels were indeed markedly similar in their style and colouring, with the principal difference being that the defendants' label bore the word SCHLURPPES instead of the trade mark SCHWEPPES. The judge held that the defendants had reproduced a very substantial part of the claimants' copyright work in the form of the Schweppes label. He also held that parody constituted no defence and ordered summary judgment against Schlurppes.
In Williamson Music Ltd and Others v The Pearson Partnership Ltd and Another [1987] F.S.R. 97 the claimants were the exclusive UK licensees of the various copyrights in the Rodgers and Hammerstein musical "South Pacific". The first defendants were an advertising agency which had created a television advertisement for the second defendants, National Express. The ad featured a coach hostess called Elaine and a backing track entitled "There is nothing like Elaine". The claimants claimed that the track infringed the copyright in the music and lyrics of the song "There is Nothin' Like a Dame", which features in "South Pacific".
The defendants admitted that the lyrics and music appearing in their advert had deliberately been created so as to parody "There is Nothin' Like a Dame", but asserted that there had been no infringement. The judge held that no special rules applied to parodies when it came to copyright. The normal test had to be applied, which was whether the parody reproduced a substantial part of the expression of the original work. Applying this test to the lyrics, which had in effect been completely rewritten, this test was not met, but the same could not be said in relation to the musical copyright. The balance of convenience favoured the claimants and an injunction was granted banning further airings of the ad until trial.
However, it should be remembered that in some cases a parody, caricature or pastiche might avoid being held to be a copyright infringement. This could occur, for example, in the following scenarios:
- the allegedly infringing work does not reproduce a substantial part of the claimant's original copyright material-this could cover parodies based loosely on a work rather than copying significant parts of it;
- the allegedly infringing work reproduces a substantial part of the original, but escapes liability under the statutory "fair dealing" defence, owing to its being for criticism or review; or
- in the circumstances, enforcement of copyright is contrary to the public interest.
Furthermore, it is obviously open to the person creating the parody, pastiche or caricature to seek the consent of the person holding the rights in the underlying work. Alternatively they could base their parody on something that has now fallen out of copyright.
Response to the first consultation
The majority of the respondents to the first IPO consultation expressed no interest in the proposed exemption for parody, caricature and pastiche, and of those who did comment, opinions were rather polarised. Those supporting a new exemption cited various reasons including promoting freedom of speech and protecting the cultural asset that parody represents.
However, rights holders were generally against the proposal and pointed to the vibrancy of the current UK parody scene, a lack of evidence supporting change and the potential financial and reputational damage.
Ultimately, the Government decided that, in light of the response to the first consultation, there was not sufficient justification for introducing a new exemption for parody in the UK.
Why this matters:
The decision of the Government not to pursue introducing a new copyright exemption in this area is a potent reminder that marketeers need to take care when using parody, caricature or pastiche in advertising, packaging or branding in the UK. They should try to bring their work within the existing copyright exemptions, for example by not using a substantial part of the work being parodied, or alternatively seek permission from the copyright owner.
In an international context, a number of jurisdictions, including France, Germany and Australia, already have specific statutory exemptions that cover parodies, while in the USA they benefit from the "fair use" provision of the Copyright Act 1976. The different approach under UK law should therefore be considered when planning international marketing campaigns.
