A recently-introduced exception to copyright protection presents a new opportunity for the advertising and creative industries to adapt existing works for comedic effect. From 1 October this year, it became permissible to use copyright works for the purposes of parody, caricature and pastiche. The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 provide that:

  1. “ Fair dealing with a work for the purposes of caricature, parody, or pastiche does not infringe copyright in the work.
  2. To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section would not infringe copyright, that term is unenforceable.”

A notable example of a work which has taken advantage of this new exception already is Cassetteboy’s parody of David Cameron. Additionally, Chips Ahoy!’s parody of Cadbury’s Dairy Milk Gorilla advert is a great example of how major brands could look to take advantage of the new Regulations. The Chips Ahoy! ad features the same gorilla, purple colour and overall tone from the original ad. However, notably it uses a completely different background song and features a humorous reveal at the end which introduces the Chips Ahoy! mascot in an attempt to mock the original ad. Although Chips Ahoy! and Cadbury are ultimately owned by the same parent company (and so may have cleared usage between themselves), the ad nevertheless demonstrates the sort of opportunity which may now be open to advertisers.

Parody, caricature or pastiche? The Regulations do not include any definitions of these concepts. The UK Government has issued a guidance note which helps:1

  • Parody “imitates a work for humorous or satirical effect”
  • Caricature “portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment”
  • Pastiche involves a “musical or other composition made up of selections from various sources or one that imitates the style of another artist or period”

There has also been further explanation as to what constitutes parody at a European level. As ruled by the European Court of Justice in the case of Deckmyn v Vandersteen (C-201/13),2 a parody must “evoke an existing work, while being noticeably different from it” and “it must constitute an expression of humour or mockery”. However, the precise extent of the terms “humour” and “mockery” in this context have not been explained. They will be interpreted by the courts on a case-by-case basis: judges will be the arbiters of humour.

Limitations While the exception opens an opportunity for creative agencies to explore new concepts, it is important to note that there are a number of key limitations to be observed.

Fair dealing The exception requires fair dealing, meaning that the use of the original work should only be limited or moderate depending on the circumstances. Guidance from the Intellectual Property Office3 outlines some boundaries:

  • It will not be fair to use an entire musical track on a spoof video
  • If the parody is likely to be a substitute for the original work and/or cause loss of revenue for the holder of the original work, this is not likely to be fair
  • If more of the work is used than is reasonable and appropriate, this will also not be fair

Creators of parodies should therefore exercise care when using copyright works and use only enough to get their point across. They should also ensure that their parodies are not so similar to the original that the value of the original is diminished.

Discrimination, defamation and derogatory treatment of the work Parodists must also bear in mind the views of the original author. A controversial aspect of the Deckmyn judgment was the observation that the author of the original work has a right to ensure that their work is not associated with a discriminatory message. This ties in with the moral right of authors to object to derogatory treatment of their work, meaning distortion or mutilation of it or treatment which is otherwise prejudicial to the honour or reputation of the author.

So, while the exception allows a parody to poke fun at or mock copyright works and their messages, those creating parodies should not go too far and use copyright works as vehicles for messages that the original author can reasonably object to.

It should also be remembered that the parody exception does not provide a shield against a defamation claim. If the parody is used to damage the reputation of the original author, or any other living person, then that person may be able to bring an action for defamation against the author of the parody.

Other intellectual property rights Finally, while the parody exception allows the use of copyright works, other intellectual property rights will still be pertinent and require consideration.

Trade marks can be words, images, smells, sounds or even gestures that function to distinguish goods and services. Under certain circumstances, the owner of a trade mark can exclude others from using that trade mark without permission. While a parody can use a copyright work such as part of a song or a text, agencies must tread very carefully when considering using a trade mark without consent.

Final thoughts The new exceptions give greater freedom to the creative industries to utilise existing copyright works to novel and humorous effect. But, in the quest for comedy, care should be taken to respect the rights of the original authors.

We anticipate that some interesting case law will emerge, as brand owners strike the balance between accepting being the butt of a joke and protecting their brand identity.