6 mock the original work, copyright owners rarely consent to their original work being parodied. 7 This dissertation will begin with a brief analysis of what parody is and a discussion of the purpose it serves in society.
A short history
To cover how parody infringes on an author's copyright, I will also provide a brief description of copyright and then examine the law on the issue of parody in the three different jurisdictions I mentioned above. This will be necessary to determine whether there are lessons to be learned from these jurisdictions.
The modern definition of parody
Target parody
Dentith goes further and argues that there can never be a fixed meaning of parody, because parody is widely used by a large number of persons in a variety of ways.17 Hutcheon agrees with Dentith and says that parody does not amount to a single concept should not be limited. 18.
Weapon parody
From the descriptions above, it appears that parodies of weapons and targets are used in cases where the parodist wishes to comment or criticize. Making a social commentary distinguishes a gun parody from a comic parody, which creates problems when it comes to convincing the courts that the parodist deserves protection.
Comic Parody
It will later be shown that the use of parody for the purposes of 'comment and criticism'33 does not pose a problem for parodists and that these two types of parodies can be accommodated within existing copyright rules.34 But despite this, there still appears to be a problem with gun parody because even if the parodist seeks to criticize or comment on society, he or she uses a protected work where there is no need for it.35 Nevertheless, it may be that protective gun parody against a claim of copyright infringement is easier to argue because it involves making a social commentary that is protected under copyright exceptions. Therefore, if a parody projects only pure humor as opposed to any criticism and commentary, the parodist is likely unprotected and the parodist is very likely to commit copyright infringement.39.
Why parody is important
Parody’s Political role
Deazley states that parody has a meaningful role in promoting freedom of expression and therefore argues that parody should be "meaningfully and unambiguously accommodated within the copyright regime".47 Furthermore, it is argued that to deny parody a place within copyright law would be to deny freedom of expression, since freedom of expression forms the basis of the parody. 48. See also generally T Woker Advertising Law (1999) ch 14 on the importance of freedom of expression in the new democracy.
Parody as entertainment
For the purposes of this paper, it is not necessary to discuss the entire decision and the majority's judgment, as the majority did not deal with parody and found for Nurse on other grounds. As noted above, and for the purpose of this paper, the most relevant comments in the Constitutional Court are those of Sachs J, who specifically dealt with parody, and who ultimately took the view that there is a need to provide latitude for parody and freedom. of expression.
Criticisms of recognising parody
15 Comic parodies, as discussed above, are a form of entertainment. Thus, the lack of a defense of parody means that the people who entertain in this way are not free to produce their comedies in any way they wish, for fear of possible claims of infringement by copyright owners. This is problematic because it inevitably limits the quality of comedians' work, thereby diminishing the quality of entertainment audiences receive.65 Accordingly, only the copyright holder benefits from the lack of a parody defense.
A critical evaluation of the criticisms of parody
Finally, one of the reasons why the UK Intellectual Property Office rejected the recommendation to introduce a specific parody defense is that the absence of a parody defense has never caused concern or difficulty in the past.75. 17 to refuse to introduce the defense of parody, as difficult decision-making is part of judicial powers.77.
Concluding Remarks regarding Parody
An explanation of copyright
Therefore, careful consideration must be given to copyright law and how parody comes into conflict with the rights of the copyright holder. 20 Commonwealth copyright law, but US copyright law differs in some respects from United States copyright law.94.
Why copyright is protected
The law of copyright has therefore been described as, "one balancing trick".104 Groves quotes from Landes and Posner and points out that, "Striking the correct balance between access and incentives is the central problem in copyright law".105 Copyright law recognized. the need to achieve this balance and offers three main ways to achieve such a balance. Firstly; copyright law grants copyright owners a limited monopoly, that is, after a certain period the work falls into the public domain.
Works eligible for copyright protection
Requirements for copyright protection
23 programs and movies121. However, certain requirements must be met for a work to qualify for copyright protection. Therefore, it is highly likely that the parodist will face a claim of copyright infringement at some point.
Copyright Infringement
24 originality.127 The requirement of originality therefore simply requires that the work originate from the author, not that the work be a new thought or expression. 128. Therefore, the substantial taking of an original work for parody purposes can be seen as a form of copyright infringement.
Defences
Fair use
As mentioned above, there can be a difference between the copyright owner and the author of the work. Many academics agree on the nature and cause of the tension between the copyright owner and the parodist. One of the defenses to a claim of copyright infringement under US copyright law is the fair use defense.
This can be seen from the subsequent cases, which are largely based on the reasoning of the court in Campbell.
Idea expression dichotomy
Moral Rights of the Copyright Owner
Moral rights are rights that belong to the author of the copyrighted work even if the author no longer owns the copyright.144 These rights give the author his/her protection. 28 the author's reputation".150 Together, the right of paternity and the right of integrity result in moral rights. However, Dean asserts that moral rights are comparable to personality rights which last until the death of the individual.
This will be done to determine whether the issue of moral rights and their violation is so serious as to validly preclude a defense of parody.
Is there a need to accommodate both the copyright?
A discussion of copyright law in the United States will follow, along with an analysis of the treatment of parody by American courts. A study of the cases below will also show that American courts have accepted parody as a legitimate form of fair use. 39 manager of the band informed Acuff-Rose that the song "Pretty Woman" was a parody of.
The court then reiterated that the use of the original work was acceptable because the parody had to use something of the original work to make its point. Rock-a Phillip, rock”, whereas the chorus of the original work (the song) used the words. The court in CanWest did not follow the suggestions in the CCH decision; instead, the judge followed the reasoning of the court in Michelin.
At 453, Craig argues that the CCH case views the public as an important “beneficiary of the copyright system.” These fair dealing provisions specify the circumstances in which it is fair use to make use of a work without the author's permission.
Accomodating competing interests
The United States of America
- The Law of Copyright
- Approach to Parody
- Case Law
- Campbell v Acuff-Rose
- Suntrust Bank v Houghton Mifflin
- Salinger v Colting
- Concluding remarks regarding the cases
The four factors listed in s107 of the American Copyright Act of 1976 first emerged from the case of Folsom v Marsh185. An examination of the cases shows that there are two models that the courts use to determine whether there has been fair use. 41 The third factor that the court analyzed was "the amount and substantiality of the potion used in relation to the copyrighted work as a whole".228 The court said that with this factor.
42 agreed that "no more was taken than was necessary", and therefore the court found that the copying was not excessive even though the original was taken to heart. 237. Regarding the "quantity and substantiality of the part used", the court noted that although TWDG had taken extensively from the original, the taken parts were nevertheless transformed so as to acquire new significance.264. The Campbell case set a benchmark for how the four factors in s107 of the Copyright Act would apply in cases of parody.
The United Kingdom
- The Law of Copyright
- Approach to Parody
- Case Law
- Glyn v Weston Feature Film
- Joy Music v Sunday Pictorial
- Schweppes v Wellingtons
- Concluding remarks regarding the cases
Fair dealing, codified in ss29 and 30 CDPA in the UK, is one such exception to copyright infringement. Deazley rejects all three of the IPO's reasons why the parody defense is unnecessary. In May 2011, Ian Hargreaves311 submitted a review of UK intellectual property laws.312 The aim of the review was to adapt the UK intellectual property framework so that.
The court asked whether the defendant had reproduced a "substantial part of the work", in order to answer the question of mental labour. 329 According to the court, this was a case that had to be determined by facts. 330.
Canada
- The Law of Copyright
- Approach to Parody
- Case law
- Michelin v National Automobile
- CCH v Law Society of Canada
- CanWest MediaWork Publications Inc v
- Concluding remarks regarding the cases
363 Section 21 of Bill C-11 states that "fair dealings for the purposes of research, private study, education, parody or satire do not infringe copyright". The Supreme Court in CCH stated that fair dealing was a user's right and therefore had to be liberally interpreted. However, a study of cases has shown that it is then quite difficult to defend parody, because parody is not listed as an objective of fair conduct.
The advantage of following the American approach is that the Americans have a fairly open approach to fair dealing. A comparative Copyright's Analysis of Canada's Fair Dealing to UK Fair Dealing and U.S Fair Use (2010) McGill 309. Mohammed EA Parodi as fair dealing in Canada: a guide for lawyers and judges (2009) Journal of Intellectual Property Law & Practice 468.
