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COPYRIGHT,
MORAL RIGHTS AND PARODY
M.Travis
Warning: This
should be treated as a work in progress. Also, this is written from
a New Zealand perspective, although it investigates international treatments
of parody within copyright law.
NB: Endnotes are not linked within this HTML document. Please request
a copy of the fulltext if references are required.
"The
tribute that mediocrity pays to genius." - Oscar Wilde
COPYRIGHT
1.
Definition
1.1 "Copyright" is a property right that exists in original
works, be they:
(a) literary, dramatic, musical, or artistic works;
(b) sound recordings;
(c) films;
(d) broadcasts;
(e) cable programmes; or
(f) typographical arrangements of published editions.
1.2 A work may be original if it is produced independently from the
expenditure of skill, labour and knowledge.
1.3 A work is not original if it is a copy of another work, or infringes
the copyright in another work.
2. Infringement
2.1 A person infringes copyright in a work if they do any restricted
act without licence.
2.2 Restricted acts which constitute primary infringement include:
(a) copying;
(b) issuing copies to the public;
(c) performing, playing, or showing in public;
(d) broadcasting, or including in a cable programme; and
(e) adapting.
2.3 Restricted acts which constitute secondary infringement include:
(a) importing a copy;
(b) possessing, or dealing with a copy;
(c) providing means for making copies;
(d) permitting use of premises for infringing performance; and
(e) provision of apparatus for infringing performance.
2.4 An infringement of copyright is actionable by the copyright owner
(usually the author ), and relief may take the form of damages, injunctions,
accounts or other relevant remedies.
2.5 For secondary infringement, the plaintiff has the onus of proving
actual (not constructive) knowledge.
3. Copying
3.1 "Copying" means:
(a) reproducing or recording a work in any material form;
(b) storing a literary, dramatic, musical, or artistic work in any medium
by any means;
(c) making a dimensional copy of an artistic work presented in different
dimensions; and
(d) photographing the whole or any substantial part of any image forming
part of a film, broadcast, or cable programme.
3.2 In determining whether a work is a copy, the court examines:
(a) substantiality;
(b) causal connections; and
(c) objective similarity.
4. Substantiality
4.1 Restricted acts against an original apply "in relation to the
work as a whole or any substantial part of it". Substantiality
refers to quality, not quantity, so exact reproduction is not necessary.
4.2 In considering what is substantial, regard must be had to the purpose
for which the copyright material has been taken.
5. Causal connection
5.1 Causal connection examines whether any similarities are due to mere
chance, common source or subconscious copying. Otherwise it is a question
of who copied whom. The onus is on the plaintiff to show derivation
and negate issues such as common source.
6. Objective similarity
6.1 Objective similarity alone is insufficient. There is a need to show
"such a degree of complexity in the similarities" that the
work could not have been made independently.
6.2 For literary works the court will look at the "combination
of situations, events and scenes" while special care and attention
will be required for artistic works.
MORAL RIGHTS
7.
Definition
7.1 The Copyright Act 1994 also protects the moral rights of the author,
such as:
(a) the right to be identified as the author or director (called the
right of attribution);
(b) the right to object to derogatory treatment of the work (called
the right of integrity); and
(c) the right against false attribution of identity of author or director.
7.2 Some of these rights can be protected by other causes of action
(eg contract or tort), especially in jurisdictions where moral rights
are not recognised (such as America). Afterall, a decision "clothed
in terms of proprietary right in one's creations … also properly
vindicate[s] the author's personal right to prevent the presentation
of his work to the public in a distorted form".
8. Derogatory treatment
8.1 Derogatory treatment is defined as that which:
(a) distorts or mutilates the work; and
(b) is prejudicial to the honour or reputation of the author or director.
8.2 This can include making a work appear "ridiculous", but
does not necessarily apply to taking extracts from a work and placing
them in a "different context". Determining whether there is
distortion requires an objective assessment.
8.3 In order for a work to have a defence under the qualifications and
exceptions listed in the Act, there must be a "clear and reasonably
prominent indication … that the work has been subjected to treatment
to which the author has not consented". This must appear with,
and at the time that the author is identified.
PARODY
9.
Definition
9.1 Parody can be defined as "literary or artistic work that imitates
the characteristic style of an author or a work" for a certain
purpose (usually comic effect or ridicule). However, it has also been
described by theorists as "imitation characterised by ironic inversion"
or inter-art discourse intersecting "creation and re-creation …
invention and critique".
10. Infringement
10.1 In any event, parody relies on a close association with an original
work. Arguably, a work of parody is made better the more the original
work is recalled. Because of this necessary objective and substantial
similarity, a work of parody may be considered a "copy" for
the purposes of the Copyright Act 1994.
10.2 Also, depending on how the work is presented, a parody might offend
the original author's moral right of integrity under the Copyright Act
1994.
NON-INFRINGEMENT
11.
Failure
11.1 A person does not infringe copyright in an original work where:
(a) the plaintiff has not established that there is an original work;
(b) the original work is not subject to copyright (such as ideas, facts
or works excluded by statute );
(c) the plaintiff has not established that they own copyright in the
original work;
(d) the duration of copyright has expired; or
(e) in the case of secondary infringement, the plaintiff has not established
actual knowledge.
12. Exceptions
12.1 A person does not infringe copyright in an original work where:
(a) the copyright has been transferred to them (by assignment, testamentary
disposition or operation of law);
(b) they have a licence pursuant to Part V of the Copyright Act 1994;
(c) their work is a permitted act under the Copyright Act 1994;
(d) their work is in the public interest;
(e) their work is for private or domestic use;
(f) their work is not a "copy"; or
(g) there is some other defence.
12.2 A person does not infringe moral rights in a work where the rights
holder has consented or given waiver.
PERMITTED ACTS
13.
Copyright Act 1994
13.1 The Act permits:
(a) incidental copying;
(b) fair dealing with a work for the purposes of criticism or review,
where accompanied by a sufficient acknowledgment;
(c) fair dealing with a work for the purposes of reporting current events;
(d) fair dealing with a work for the purposes of research or private
study;
(e) copying for educational purposes; and
(f) copying certain artistic works on public display (buildings, and
works that are permanently situated in a public place or in premises
open to the public).
14. Incidental copying
14.1 Incidental copying, while not defined in the Act, means "casual,
not essential, subordinate" or "merely background."
15. Fair dealing
15.1 According to New Zealand authority, fair dealing "is simply
a reasonable use" and "must be judged by looking at the nature
of the works … and the purpose" for which they are used.
15.2 This is a "question of degree" and must involve consideration
of:
(a) "the number and extent of … extracts", that they
are not "altogether too many and too long";
(b) "the use made of them", that they are not "used to
convey the same information as the author, for a rival purpose";
and
(c) their proportions.
16. Criticism and review
16.1 Fair dealing for criticism and review has its ordinary meaning.
Thus, one can attack both "the literary style" and "the
doctrine or philosophy" of a work.
16.2 Fair dealing for criticism and review must be accompanied by sufficient
acknowledgment identifying:
(a) the work by its title or other description; and
(b) the author of the work.
16.3 This requirement is satisfied by any "wording or other indication
which would convey to a reasonably alert member of the relevant audience
that the identified person is the author".
16.4 Acknowledgment is not required where the work is published anonymously
or, if unpublished, it is not possible by reasonable inquiry to ascertain
the identity of the author.
ORIGINALITY
17.
Substantiality
17.1 Any substantial similarity between a derivative work and an original
work will normally amount to a breach of copyright. However, "a
mere evoking or conjuring up of recollection" is not infringement.
17.2 In considering what is substantial "regard must be had to
the purpose for which the copyright material has been taken".
17.3 Consequently, a defendant will need to show that:
(a) no "substantial part" of the original work is reproduced;
(b) use of the original work is "confined to some comparatively
insignificant part of it"; or
(c) originality.
18. Originality
18.1 Even though a work is derived from another work, the author may
have "bestowed such mental labour upon what he has taken and …
subjected it to such revision and alteration as to produce an original
result".
18.2 In New Zealand, originality derives from the "independent
labour and skill" of the artist. This may be evidenced by:
(a) "very fine work involving a high degree of concentration, skill
and care";
(b) work "of great delicacy and intense application";
(c) "remarkable" work; or
(d) work of a "high standard".
FREEDOM OF SPEECH
19.
New Zealand Bill of Rights Act 1990
19.1 New Zealand's commitment to the International Covenant on Civil
and Political Rights is affirmed by the New Zealand Bill of Rights Act
1990.
19.2 Amongst other things, this Act guarantees:
(a) the "right to freedom of thought, conscience, religion, and
belief, including the right to adopt and to hold opinions without interference";
and
(b) the "right to freedom of expression, including the freedom
to seek, receive, and impart information and opinions of any kind in
any form".
19.3 Significantly, other enactments are to be given "a meaning
that is consistent with the rights and freedoms contained in [the] Bill
of Rights" and "that meaning shall be preferred to any other
meaning".
19.4 Although there have been no intellectual property cases in which
a defence based on the Bill of Rights has been pleaded, some kind of
freedom of speech defence may now be available in New Zealand.
19.5 However, the "right to freedom of expression is subject to
the rights of others". Thus freedom of expression will not excuse
a parodist from liability for passing off, or trademark infringement.
POLICY
20.
A distinctive genre
20.1 Because of the legal confusion surrounding parody, some commentators
argue that it should be subject to exceptional treatment. For example,
parody might be given specific protection as a genre, such as exists
in:
(a) Spain;
(b) France; and
(c) Belgium.
20.2 However, while a specific parody exception "offers the courts
the chance to develop definitions of parody that reflect changes in
literary and artistic theory and practice", one must note that
in reality, and "[w]ithin the copyright context … definitions
of parody are [usually] restricted to its more obvious and conventional
manifestations".
21. Market failure
21.1 Theorists argue that the market for copyright goods lacks competitive
conditions because such works are "public goods" and cannot
exclude a non-purchasing audience. Consequently, works "will be
under-produced if left to the private market".
21.2 Copyright law is therefore a response to market failure, within
which parody becomes a secondary market failure.
21.3 However, this only applies where "the primary goal of the
… intellectual property regime is to foster the creation and dissemination"
of texts, which is not the case for the law of moral rights, trade marks
and passing off.
22. Transformative use
22.1 As per the discussion of originality, a parody might be considered
a creative work in its own right, regardless of its necessary dependence
on an original work. In economic terms this is defined as "a use
which does not constitute a market substitution" for the original.
22.2 This reasoning has been followed in jurisdictions such as:
(a) the United States;
(b) Germany; and
(c) Italy.
MORAL VERSUS ECONOMIC RIGHTS
23.
The commercial approach
23.1 Parody targets the "author's personality manifested in his
or her creation" and is not "an attack on his or her ability
… to profit from, or exploit commercially, the copyright".
Consequently, the standard economic approach "to an essentially
moral dilemma has not only engendered inconsistency and confusion"
but is "wrong in principle and inimical to both democratic values
and artistic creativity".
23.2 Instead we might advocate a moral rights approach, which, "rather
than stifling artistic endeavours, would only restrain parodies which
harm the honour and reputation of the original author; otherwise parodists
would be given free reign to make the best parodies possible".
24. Reduced demand
24.1 The economic rights approach asks whether a parody has reduced
demand for the original. In practice, this means reduction in demand
must result from the partial satisfaction of that demand by the secondary
work - and so does not apply where the reduction in demand is due solely
to the chilling effect of criticism.
24.2 As such, a better formulation of the test is whether a parody has
'replaced' demand for the original. In other words, "[b]iting criticism
suppresses demand; copyright infringement usurps it".
24.3 However, this test is not economically sound as:
(a) "a parody will rarely compete in the same market as the original
work" (afterall, a parody is usually a humorous interpretation
of a serious work); and
(b) "the secondary work will often increase demand for the primary
work by its additional treatment and exposure".
24.4 Furthermore, this test denies:
(a) "the legitimate interests of true parodists on the ostensible
ground of protecting authors of original works"; and
(b) "the author's legitimate moral claims to integrity, honour
and reputation where these are imperilled by reckless parodies that
can be shown to enhance the market value of the original".
25. Commercial purposes
25.1 A variation on the economic rights approach asks whether a parody
is of a commercial or non-profit nature. This assumes that "to
be protected a parody must have only artistic and not economic value".
But this is an incorrect premise. Where parodies perform their "critical
or humorous design effectively", they will "attract commercial
value because of, and in addition to, their artistic worth".
25.2 The better test is to first determine whether a parody has critical
or social value. If so, "whether it has economic value or not,
the wider purpose it serves in promoting creative endeavour and protecting
democratic values should be presumed to outweigh the copyright owner's
proprietary concerns."
25.3 Otherwise, work created "solely for commercial gain"
with no critical function "deserves no special treatment".
UNITED STATES
26.
Fair use
26.1 "Fair use" involves assessment of:
(a) the purpose or character of the use (including whether or not it
is commercial);
(b) the nature of the copyright work;
(c) the amount and substantiality of the portion used; and
(d) the effect on the potential market for, or value of, the copyright
work.
26.2 This is underpinned by the concept of "transformative"
or "productive" use, where an artist builds creatively on,
rather than simply appropriates, existing works.
26.3 The types of fair use envisaged by US law include criticism, research
and scholarship. As with New Zealand, parody will be sidelined as criticism
which has been cast in parody form. Consequently, even if the parody
ridicules the original work, it will not be excused unless it can also
be considered a "comment or criticism".
26.4 However, the US courts exhibit a particular leniency towards parody.
While not fair use per se, they recognise that
(a) the commercial character of a parody is not itself decisive and
may be outweighed by its "transformative" value;
(b) to ensure audience recognition a parody may use more of the original
than is normally acceptable for fair use;
(c) questions of good or bad taste are irrelevant; and
(d) there is not always a protectable derivative market for parody.
RELATED ISSUES
27.
Trademark parody
27.1 The primary purpose of normal parody is the creation of new art,
with criticism or commercial gain as secondary objectives. But because
trademarks "differ from works of creative art in that their raison
d'etre is the identification of goods or services," the trademark
parodist cannot "escape from the inherently commercial nature of
his brief and its associated legal and commercial constraints. Relatively
few trade mark parodists are motivated solely by the desire to satirise
or comment on a brand image".
27.2 In any event, the parody of trademarks is further complicated in
New Zealand by the existence of a registration system which confers
special protection.
28. Passing off
28.1 An action in passing off is concerned with a particular type of
misrepresentation involving the use of an indicium that suggests a (non-existent)
commercial connection between the applicant and the goods or services
of the respondent. The misrepresentation may be either express or implied.
28.2 Such a misrepresentation may take the form of a parody, in which
case the courts will distinguish between a:
(a) "mere" parody; and
(b) a parody which is "embedded" in a commercial dealing (such
as an advertisement).
28.3 A "mere" parody is "innocent because viewers would
receive the impression" that the author of the original material
"would not have agreed" to their work being parodied; whereas
an "embedded" parody implies endorsement.
28.4 Confusion is the key, as a "parody which occasions only a
momentary and inconsequential deception is both successful and permissible;
but a parody which occasions an enduring deception is neither".
Afterall, if "the defendant employs a successful parody, the customer
would not be confused, but amused".
ENDNOTES
s 14(1) Copyright Act 1994 ("CA").
See 17: Originality.
s 14(2) CA.
s 29 CA.
s 30 CA.
s 31 CA.
s 32 CA.
s 33 CA.
s 34 CA.
s 35 CA.
s 36 CA.
s 37 CA.
s 38 CA.
Ibid.
s 21 CA.
s 120 CA.
IBM v Computer Imports Ltd [1989] 2 NZLR 395. Taiwanese IBM clones.
Wham-O MFG Co v Lincoln Industries Ltd [1984] 1 NZLR 641. Preliminary
Frisbee designs.
s 29(2)(a) CA.
Hawkes & Son (London) Ltd v Paramount Film Service [1934] Ch 593.
A film in which a band plays some recognisable music, albeit in the
background.
Francis Day & Hunter Ltd v Bron [1963] Ch 587. The artist coincidentally
composed a piece of music very similar to the original.
Joy Music Ltd v Sunday Pictorial Newspapers (1920) Ltd [1960] 2 QB 60.
Printed lyrics in parody of the song "Rock-A-Billy".
British Northrop v Texteam Blackburn Ltd [1974] RPC 54. Both parties
produced a list of spare parts which they manufactured, whose contents
were the same.
Plix Products Ltd v Frank M Winstone (Merchants) Ltd (1984) 3 IPR 390
(HC), and [1985] 1 NZLR 376 (CA). Kiwifruit containers indirectly copied.
Zeccola v Universal City Studios Inc (1982) 46 ALR 189. "Jaws"
concept not protected, but combination of story details are.
Ibid.
s 94 CA. Not required for incidental copying or news reporting, per
s 97 CA.
s 98 CA.
ss 102 - 104 CA.
Gilliam v American Broadcasting Corporation 538 F2nd 14. ABC re-edited
Monty Python shows, butchering them in the process.
s 98 CA.
Snow v The Eaton Centre Ltd (1982) 70 CPR 2d 105. Christmas ribbons
tied onto artist's sculpture.
Morrison Leahy Music Ltd v Lightbond Ltd [1993] EMLR 144. George Michael
medley.
Shostakovich v Twentieth Century Fox Film Corp 80 NYS 2d 575. Anti-Soviet
film using public domain music by a Soviet composer.
s 99 CA.
ss 100 and 101 CA.
The American Heritage Dictionary of the English Language, Fourth Edition.
L. Hutcheon, "A Theory of Parody: The Teachings of Twentieth-Century
Art Forms" (1985), page 6.
What you say? Ibid, page 2.
See 8: Derogatory treatment.
s 27 CA.
ss 22 - 25 CA.
s 113 CA.
See PERMITTED ACTS.
s 225(3) CA, nothing in the Act "affects any rule of law preventing
or restricting the enforcement of copyright, on grounds of public interest
or otherwise". See also Hubbard v Vosper [1972] 1 All ER 1023,
at 1027. Ex-Scientologist publishes book criticising extracts from Hubbard's
work.
See CA, variously.
See ORIGINALITY.
s 107(1) CA.
May be given in writing, s 107(2) CA.
s 41 CA.
s 42(1) CA.
ss 42(2) and (3) CA.
s 43 CA.
ss 44 and 45 CA.
ss 73 CA.
Hawkes & Son (London) Ltd v Paramount Film Service [1934] Ch 593.
Television New Zealand Ltd v Newsmonitor Services Ltd [1994] 2 NZLR
91, at 107.
Hubbard, at 1027.
Ibid.
Ibid, at 1028.
Pro sieben Media AG v Carlton UK Television Ltd [1997] EMLR 509. Use
of footage from an exclusive interview to criticise interview tactics.
s 2 CA.
Schweppes v Wellingtons [1984] F.S.R. 210. Parody of Schweppes bottle,
called Schlurppes. See also 4: Substantiality.
AGL Sydney Ltd v Shortland City Council (1989) 17 IPR 99. Advertisement
takes off other advertisement.
Joy Music, per Hanfstaengl.
Williamson Music v Pearson [1987] F.S.R. 97. Advertising parody of a
Rodgers and Hammerstein song.
Hanfstaengl v Empire Palace [1894] 3 Ch 109.
Per Glyn, upheld in Joy Music. See also 22: Transformative use.
Martin v Polyplas Manufacturers Limited [1969] NZLR 1046. This involved
the artist making a three dimensional copy from an original engraving.
Ibid.
s 13, New Zealand Bill of Rights Act 1990 ("NZBOR").
s 14, NZBOR.
s 6, NZBOR.
Clark v Associated Newspapers [1998] 1 All ER 959. Newspaper publishes
article parodying politician's diary.
Ibid.
Nike Inc v 'Just Did It' Enterprises (1993) 6 F 3d 1225.
Real decreto legislativo, 12 abril 1996, Num. 1/1996, Propriedad Intelectual
Art. 39.
Loi de juillet 1992 relative au code de la propriété intellectuelle
Article 112-5, n.4º.
Loi de 30 juin 1994 relative au driot d'auteur et aux driots voisins,
Art. 22, n.6º. These jurisdictions justify protection as preserving
a forum for public discussion of a work, to which the author is taken
to have consented on publication.
Gredley and Maniatis, "Parody: A Fatal Attraction?" [1997]
7 EIPR 339, at 344.
Gordon, "Fair Use as Market Failure: a Structural and Economic
Analysis of the Betamax Case and its Predecessors" (1982) 82 Col.
L.Rev. 1600, at page 1611.
Michael Spence, "Intellectual Property and the Problem of Parody"
(1998) Law Quarterly Review 114 (Oct) 594, at page 604.
See ORIGINALITY.
Supra 82.
("fair use") s 107 Copyright Act 1976.
("freie Benutzung") s 24 Urheberrechtsgesetz.
("autonoma identità") Article 1, Legge 22 aprile 1941,
n.633.
M. Weir, "Making Sense of Copyright Law Relating to Parody: A Moral
Rights Perspective" 1992 Monash University Law Review 18(2) 194,
at 196.
Ibid, at 194.
Ibid, at 196.
Hill v Whalen and Martell 220 F 359. "Mutt and Jeff" versus
"Nutt and Giff".
Fisher v Dees 794 F 2d 432, at 438.
Supra 88, at 198.
Ibid.
Ibid.
Ibid.
Ibid, at 200.
Ibid, at 201.
Ibid. Also, Hogan v Pacific Dunlop Ltd (1988) 12 IPR 225. Shoe-makers
parody knife scene from "Crocodile Dundee" solely to promote
sale of shoes, however much their employees "believed they were
embarked upon a pursuit of the visual and dramatic arts".
American Geophysical Union v Texaco 802 F.Supp.1 (S.D.N.Y. 1992).
Rogers v Koons 960 F.2d 301 (2d Cir.1992). Well known photograph doctored
for comic effect. Note: the defendant's "profit-making motives"
were also fatal to his case.
Campbell v Acuff-Rose 114 S.Ct 1164 (1994).
Supra 80, at 341.
Ibid, at 412.
Ibid. For example, Schweppes.
Hogan v Pacific Dunlop Ltd.
Pacific Dunlop Ltd v Hogan (1989) 14 IPR 398. Appeal. The parody is
described as a "caricature".
Ibid.
Supra 74.
Supra 76.
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