We are increasingly used to seeing ‘reworkings’ of pictures and video clips on social media, but is this legal?
If you have ever pondered how many European judges it would take to define “parody”, you now have your answer. On 3 September 2014, thirteen European judges, constituting the Grand Chamber of the Court of Justice of the European Communities, ruled on this very question.
After shooting their own version of “Gangnam Style” on their smartphones and uploading this to YouTube as “European Court Style”,* the judges came to the conclusion that, from a legal point of view, parody is an autonomous concept that must be considered on its own terms. Essential to a work of parody, they ruled, are that such a work (a) evokes an existing work while being noticeably different from it, and (b) constitutes an expression of humour or mockery.
Then, in 4-part barbershop formation and to the tune of “Oops!... I Did It Again”,** the judges reiterated that there is no need for a work of parody to meet any other specific requirements, such as having to display any original character of its own, or having to mention the source of the parodied work.
The question as to how “parody” should be defined from a legal perspective came before the European court as a result of a case referred from the Belgian courts, which concerned the purportedly humorous re-use of a cartoon as part of a political campaign without the permission of the owners of copyright in the cartoon.
The EU’s Copyright Directive provides that EU member states may implement exceptions and limitations to the owner of copyright’s exclusive rights, including in respect of “caricature, parody or pastiche”. Belgium had implemented such a provision in its copyright law some time ago, and accordingly the defendant in the case argued that his use of the cartoon fell within the exception.
The European court ruled that it is for national courts to decide whether the parody exemption applies in particular circumstances, having regard to the need for a fair balance between the rights and interests of the authors of, and those who wish to parody, works protected by copyright.
Although there is not currently a parody exception in UK copyright law, leaving the nation wide open to being accused of not even being as funny as Belgium, a new parody exception will come into force in the UK on 1 October 2014.
Since the scope of the exemption is currently rather unclear, hopefully we can look forward to the issue being tested in the English courts and top QCs doing battle over what constitutes “an expression of humour or mockery” - in what may really turn out to be legal proceedings that seem to have been lifted straight out of a Monty Python sketch…
* This may not have happened.