[This guest post dated 3rd March, 2021 is authored by Prachi Sahay, Third Year Law Student – National Law University Odisha. Any query regarding this article can be addressed to her at firstname.lastname@example.org]
Merriam Webster defines parody as a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule. In common terms, a parody or a ‘spoof’, as it is generally known, is a creative work making fun of another one. Normally, when a work is made based on or taking from another work, it is called ‘derivative work’, and would amount to infringement of the author’s copyright, unless made with their permission. However, some derivative works are exempted as ‘fair dealing’ or ‘fair use’.
The doctrine of ‘fair use’ originated in the US, through the famous 1841 case Folsom v Marsh, where the court held that while derivative works infringe copyrights, a user might ‘fairly cite’ a work for reasonable criticism. Overtime, this doctrine has evolved to include many such reasons for fair use such as education, criticism, and even parody, something which we will be focusing on in this chapter. This has been incorporated into the Indian Law in the form of section 52 of the Copyright Act. This states that derivative works for some purposes would be ‘fair dealing’ in the sense that they would not amount to infringement of copyright.
The Idea Of Parody As A Fair Use
The doctrine of ‘fair use’ as well as the idea of a parody being a fair use originated in the US. While section 107 of their Copyright Act prescribes works exempted as fair use, it does not explicitly mention parodies. The position has evolved through various court decisions, the most important one being Campbell v Acuff-Rose Music, Inc. In this case, a parody of the famous song ‘Oh, Pretty Woman’ was considered to be a fair use. Even though the parody was made for commercial purposes, the court ruled in favour of it. It stated that as long as it fulfils the conditions under section 107, it will not amount to an infringement.
The position regarding parodies is different in other jurisdictions. The European Union’s law explicitly mentions parody as an exception to copyright infringement. In Germany, parodies are permissible as long as they meet the requirements of free use prescribed by the law. Similar to the US, this has been laid down by the courts there. On similar lines, if the parodic work meets the requirements of the fair dealing law in Singapore, it would not amount to an infringement.
The Indian Position
Indian law does not specifically mention parodies as an exception to derivative work. However, the law has evolved overtime, giving us various ways to accept parodies as an exception. While it has not been explicitly mentioned anywhere, there are many strong arguments that would allow it to be an exception. Firstly, the exception of fair dealing requires two major conditions to be fulfilled. This test was laid down in the 1959 case of M/s Blackwood & Sons Ltd. V AN Parasuraman. The first condition is that the derivative work should not compete with the original one. This is called the market substitution test. The second condition demands that they should not make improper use of the work.
When it comes to a parody, it is certainly not meant to compete with the original work. For example, a spoof of a movie would be released on YouTube, and not in movie theatres. Therefore, it would not compete with the movie or hog its profits. The second requirement is a little unclear. This condition was elaborated upon in the case of Civic Chandran v Ammini Amma, where the impugned work was a counter drama deriving heavily from the original work. The court ruled that it was not an improper use. Counter dramas can be equated with parodies, except that parodies have an added element of humour.
Secondly, it is important to note that parody, in its natural sense, is a form of criticism. Section 52(1)(a)(ii) of the Copyright Act prescribes that criticism or review of a work will not amount to infringement of copyright. For example, a movie review, even though it is based on the content of the movie, does not amount to an infringement. Similarly, a parody would be a humorous criticism of the work and so should not infringe the original author’s rights. Thirdly, parodies must be protected under the right to freedom of speech and expression. As held in the US case of Suntrust Bank v Houghton Mifflin Company, parodic speech is vital in society and even if it is offensive, it deserves substantial freedom – both as a form of social and literary criticism.
There are two ways parodies are given protection – by directly stating it as an exception and by putting it under fair use/dealing. While making it an exception makes the law clear, it gives unrestricted freedom of expression to parodists. On the other hand, seeing parodies as a form of criticism and judging them individually on the parameters of fair dealing seems more reasonable. While Indian law seems to be moving on the second path, it still does not provide a concrete decision on it, something which is necessary in the internet age.
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