The explosion of content over recent years has given rise to plentiful parodies in formats ranging from videos to games and beyond. The creators of the originals, however, can find these to be unflattering or, in some cases, even outright offensive. The law can be invoked in such circumstances by angry creators, but are the parodies really that problematic?
The past decade has seen a much-discussed explosion in user generated content, with thousands of hours of video and millions of photographs created every single day. Amongst this sea of content many popular parodies have arisen, from subtitled movie clips of Hitler ranting to parody games and cover versions of controversial music videos.
For professional creators this wave of works can be both a blessing and a curse. The widespread availability and popularity of these parodies can offer a great opportunity to catch attention of audiences – especially if they go viral! On the other hand however, not all rights holders are happy to have their works used in such manners and creators can be upset at the messages that they send. The loans company Wonga, for example, was recently involved in a dispute with a Twitter user over a parody image, while publishing firm Penguin were left unamused last month by a satirical take on their classic Ladybird books.
Such responses can be an understandable reaction to what is, in many cases, an unflattering and unwelcome use of original works. Indeed, even where the message of the parody is positive original creators can sometimes still object. Well known band the Beastie Boys, for example, opposed an advertisement that parodied their song due to their wish not to be involved with advertising in any form.
The majority of parodies therefore are produced without any license or permission from the initial rights holder. In some jurisdictions this is not necessarily a significant problem. The US, for example, has developed legal space for parodies through the application of their “fair use” doctrine. Other nations have included express parody exceptions in their copyright laws.
The approach in the UK however is much more heavily in favour of the original creator. Currently parody is not a listed exception to copyright law in the UK and the UK lacks any general exception equivalent to “fair use”. The test applied by domestic courts is to examine whether a “substantial part” of the original work has been used in the parody: If so the parody will be found to infringe, irrespective of the intent of the use or any additional original content. This is a particular problem as, by their very nature, parodies often need to take a large part from the original work to be effective. Something unrecognisable is unlikely to make a successful satire. UK law therefore favours the creators of the original and makes it difficult for parodies to survive challenge.
While creators of the original works are likely to have a strong legal case however, it is questionable whether parodies actually pose a problem in the first place. Putting aside any personal offence that may be caused, empirical research carried out for the UK IPO exploring parody videos on YouTube found that they didn’t appear to cause any direct harm to the market for the original work. Indeed in some cases they even helped raise awareness of the original. More ‘minor’ works in particular seemed to receive a positive bump in publicity from parody versions and even the very small percentage of parodies that were explicitly critical (1.5%) caused no evident harm. This led the authors to conclude that “it appears to be more advantageous for a commercial video on YouTube to attract parodies, even if highly negative, than to have no parodies at all“.
Additionally, creators who lash out against parodies can often find that taking action causes more problems than it solves. In addition to the PR backlash and perception of bullying that often accompanies enforcement efforts taking action can, as a more fundamental problem, draw more attention to the very thing that the original creator wants removed. This problem – often termed the Streisand effect – can exacerbate any reputational harm caused by the parody, something that Wonga have found out to their dismay in the aforementioned Twitter dispute.
Furthermore the current UK legal framework may soon be changing. The draft Copyright and Rights in Performances (Quotation and Parody) Regulations 2014, which form part of a package of copyright changes in response to the Hargreaves Review, is set to introduce a copyright exception for:
“Fair dealing with a work for the purposes of caricature, parody or pastiche“
How effective these proposed changes will be – particularly as they are being included subject to a ‘fair dealing’ requirement – remains somewhat unclear: It is difficult to judge how the proposals will apply in practice. It has been suggested that there could remain uses which are prima facie parody which may, nonetheless, not qualify under the provision above. Overall however the addition of this exception will change the current position and will, at the least, weaken the legal bastion currently enjoyed by the creators of the original works.
It would appear therefore that for the creators of original works parodies may actually be beneficial; may be hazardous to attack; and may soon gain stronger legal protections than they currently enjoy. It may be best in the long term to simply let them be and laugh along with the rest. As the famous quote goes:
“There is only one thing in the world worse than being talked about, and that is not being talked about.”