Where’s Your Sense of Humour?

by Koka Tarini Siddhartha

In the present day, we often stumble upon memes, vines, songs or even films that humorously critique or comment on political figures or social issues. They are more commonly referred to as parodies, satires, spoofs or pastiches. It is very easy to confuse one with the others, as even lawyers and judges often do, incorrectly using the terms interchangeably, but these terms refer to various kinds of work with different creative processes and purposes for each. The focus in this post is primarily on the legalities surrounding works of parody and satire.

What is the difference between parody and satire?

A parody is an imitation of an original work where the style, characters and/or the underlying idea conveyed by the work are made fun of or criticized. Parodies target the original work and, as a result, borrow substantial portions from it. A satire, however, is a work used to comment on a broader socio-political issue or anything which affects the public or a community as a whole. It could essentially use an original work as a weapon to highlight a larger impending problem.

For example, the American singer-songwriter ‘Weird Al’ Yankovic is famous for his parodies of popular songs, including a few by the late Michael Jackson. News websites such as Faking News and The Onion are satirical in nature as they ridicule society and news media by publishing completely fake news reports to underscore the absurdities of life.

So, are parodies protected under copyright law?

Yes and no. In a previous post, we discussed the concept of fair use, its application and how it differs from the fair dealing system, as is prevalent in India. Here’s a quick recap, if you have no clue what either fair use or fair dealing means.

A copyright generally bestows an exclusive right upon the author or owner of a work, to communicate, adapt, reproduce or translate the work (C.A.R.T.). However, as the objective of copyright law is to promote and propagate inventions and creations in the fields of art and science, along with the protection of the copyright holder’s interests, even public interest is to be placed on an equally high pedestal.

This balance between the interests of the copyright holder and the public has been made possible through the fair use/fair dealing doctrines. The fair use doctrine is predominantly associated with the United States and thus, the four factor test. The fair dealing doctrine (a narrower defence than fair use) lists the permissible uses of a copyrighted work without requiring prior permission from the copyright holder and is followed in common-law countries such as the United Kingdom and India.  

The need to discuss protecting parodies under the fair use defence in the United States arose as early as 1958 in Benny v. Loews. From this case until the landmark decision in 1994 (Campbell v. Acuff-Rose Music), the courts across the states deliberated over the protection of parodies as the content of parodies is mainly copyrighted work. How can a work that blatantly copies from another copyrighted work be allowed, and not be considered infringement?

These contradicting opinions culminated in the Supreme Court of the United States having the final say — parodies can be protected under the fair use doctrine just like any other use of a copyrighted work, as long as they fulfil the four factor test that deals with the purpose and character of the use; the nature of the work; the amount copied in relation to the copyrighted work; and the effect on the potential market of the original work, provided it is transformative.

The purpose of parodies is to comment on the original work which is a permitted use. Parodies, by their nature, will invariably borrow significant and substantial portions from the original work for the public to be able to understand the parody’s reference to the original. Lastly, the markets for the original copyrighted work and parody are completely different as there is a different audience for each.

Despite this understanding of the way parodies work and their indispensable need to imitate the original work, many courts even after the Campbell decision have not favoured parodies owing to their lack in sufficiently commenting on the work, or negligible transformativeness. For example, in Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., (1997), the Ninth Circuit did not find the defendant’s book, ‘A Cat NOT in the Hat’ (the O.J. Simpson trial rhymed in a Dr. Seuss style), to be a parody.

All right, what about satirical works? Surely they are protected?

Unfortunately, the answer is not even a maybe, but a resounding no. Before delving into the why of it, this refers only to satirical works where an original copyrighted work is used as is to convey a message. There is also satire based on factual information or a way of life. For instance, satirical news websites such as Faking News and The Onion, and literary works like Gulliver’s Travels are protected as they are essentially commenting on a broader issue whilst not relying on any pre-existing work.

On the other hand, satirical works where significant portions of an original work are used are not welcomed, for they do not comment on the original work, but merely use it as a weapon to comment on something else. These works are considered lazy and unoriginal for their supposedly ‘easy’ use of an existing copyrighted work to make a point, when they should ideally stand on their own.

Is this a fair view? Of course not. A satire of such form should be no less important than parodies or other creative works. By virtue of their nature, satirical works need to rely on pre-existing, successful and well-known works to be effective and for people to get the reference. Relying on obscure works will not work in favour of the satire as it will not be widely understood. A quick check list against the four factor test will show that satirical works should, in fact, be protected under the fair use doctrine.

Even the market for the original work will not be affected as the satire will stimulate the interest by those who are keen to understand the satire or perhaps to even relive the original as a reminder. It is necessary to remember that copyright protection is not just to benefit the creator but to benefit the public as well and overprotecting a work goes against this fundamental goal.

As one can imagine, if the United States (the most pro-free-speech country in the world) is having trouble with effectively protecting both parodies and satires under copyright law, it isn’t hard to infer that there is still a long way to go before the Indian judiciary can anticipate such a scenario and judge the same prudently.

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