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Permitting Parody, Gangnam Style?

Permitting Parody, Gangnam Style?

Published: 16.01.13 at 15:16

In relation to parody and pastiche of copyrighted material the UK Government has so far been a bit po-faced. Parody, caricature or pastiche are currently not permitted in UK law on any basis. However, infringement of copyright will only take place in the event of the new creative work copying a "substantial part" from the original.

The problem for illustrators, comedians and journalists familiar with the art of parody is that in order for their humour to be understood their work often needs to be identifiable with the original piece, thereby crossing the qualitative "substantial part" test for copyright infringement. In the current climate it is necessary for these parodists to pursue and remunerate the copyright holders in order to obtain licences to use the original work.  

The UK Government has so far failed to transpose the EU Directive 2001/29/EC, which already includes a copyright exception for parody, into UK law. The UK's Copyright Design and Patents Acts 1988 seems out of sync with the modern day expectations of online users whose increasing interaction through social media sites enables them to upload and "share" content online. Consequently, the Government is set to enact legislation that would permit parody, pastiche and caricatures on a "fair dealing" basis. The Hargreaves report of Intellectual Property and Growth recommended the case for updating the exceptions to copyright law as being "strong in both cultural and economic terms."

Parody, pastiche and caricature as creative outlets can often in fact promote and gain further exposure for the original work in question. PSY, the South Korean music artist of "Gangnam Style" fame, would arguably not have seen his profile skyrocket without the number of parodies that were made of his original song, which ranged from those made by pet parrots to Ai WeiWei.

As the old saying goes "imitation is the greatest form of flattery" and given the numbers of Gangnam style parodies there are, PSY would be forgiven for blushing. PSY has embraced the parodies of his dance sensation, appreaing alongside Britney Spears and Madonna in live performaces. Far from interfering with PSY's exploitation of the original work this all seems to have acted in his favour given that, at the time of writing, the number of views for his original music video on Youtube stands at 1,199,425,166...

Although this future exception to copyright laws is a promising advancement in the realm of intellectual property law in the UK, the lack of clarity in relation to the phrase "fair dealing" could prove to be a significant issue. No definition can be found in the Copyright Designs and Patents Act 1988, but the origins of the phrase stems from the "Berne Convention".  The Convention lets individual countries allow exceptions to the exclusive copying right where the activity does not interfere with the usual exploitation of the work in question or prejudice the legitimate interests of the author. If lessons from the South Korean music phenomenon are to be drawn they would suggest that the art of parody will often in fact further the business interests of the orginal copyright owner. It remains to be seen, however, how receptive the courts will be to this argument when it comes to interpreting this new relaxtion of copryight laws in the UK.   

This article was written by George Blacksell

Photograph, some rights reserved by Joe Gratz

 

Please note that this article discusses the legal position in the UK at the time of publication. It provides general information only but is not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.

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