Rebecca Black’s “Friday” was a viral phenomenon. This teenager’s music video has notched up nearly 5 million views and has spawned hundreds of parodies. Many of these parodies are particularly negative towards “Friday” and Rebecca Black. But have they caused Rebecca Black reputational harm, or have they in fact benefited her? Should these parodies be permitted as an exception to copyright infringement?
The UK Intellectual Property Office has recently published three studies that it commissioned concerning copyright and the effects of parody. Following the Hargreaves Review, the UK Government had previously stated its intention to introduce a fair dealing exception for parodies (see our earlier post here). However, the IPO recognised that there was a lack of empirical evidence on parodies and commissioned these studies. The studies are particularly interesting, as they consider whether there is empirical evidence behind the copyright policy rationales for including, or excluding, a parody exception to infringement.
At the risk of over-simplification, an underlying policy objective of copyright law is to provide incentives to the creators of works. Having exclusive rights in their work provides an economic incentive to authors to continue creating. However, copyright policy also recognises that certain uses of that work should be permitted, for example, to enable criticism and review, or research and study.
How should this be applied to parodies? The legal scholarship has generally acknowledged two types of parody: weapon and target. A target parody uses the original work to criticise or make fun of that original work. A weapon parody uses the original work to criticise or make fun of a third party. In the USA, parody has been a form of “fair use” since the famous case of Campbell v Acuff-Rose Music Inc, 510 US 569 (1994). The US courts have generally considered factors such as whether the parody criticises the original, is commercial, is a substitute in the market for the original, has an adverse effect on the market of the original and has copied more of the original work than is necessary to evoke the original. Weapon parodies are often not found to be fair use (Dr Seuss Enterprises v Penguin Books USA, Inc. 109 F 3d 1394 (9th Cir, 1997)).
The newly published empirical data is on music videos and their parodies on YouTube. The key findings from UK IPO Study I were:
- Parody is a significant consumer activity: On average, there are 24 user-generated parodies available for each original video of a charting single. 25% are target parodies, 31% are weapon parodies and 21% are self-parodies (where the parody maker criticised themselves).
- There is no evidence for the doctrinal view that there is economic damage to rights holders through substitution: The presence of parody content is correlated with, and predicts larger audiences for original music videos.
- The potential for reputational harm in the observed sample is limited: Only 1.5% of all parodies sampled took a directly negative stance. This is where Rebecca Black’s Friday comes in. While there was a “disproportionately negative response from parodists”, the empirical evidence suggested that even highly negative parodies did not harm the original work. It is advantageous to a video to attract parodies, even critical ones.
- The creative input of parodists is considerable. While the majority (77%) copied the original sound recording, 50% added new original lyrics and 86% added a new video recording. This diminishes the possibility of confusion with the original work.
- There exists a small but growing market for skilled user-generated content: Parody videos located in this study generated up to £2 million in revenue for Google in 2011, a portion of which was shared with the creators.
Study III considered the underlying policy criteria for assessing whether parodic uses of copyright works should be permitted in combination with the new empirical data. Its conclusions included:
- In order to realise the benefits of economic growth, and the emerging market of skilled parody production, commercial parodies should also be excepted. While only 31% of parodies are commercial, these cover 91% of the audience.
- The focus should be on the threat of substitution of the original by the parody, rather than whether the parody has an adverse effect on the market of the original. It is difficult to evaluate economic harm to the rights holder, in particular, whether the parody increases the sales of the original, or the parody damages sales by effectively criticising the original.
- There are benefits to consumers brought by the creative contribution of parodists, for example when the parody is “transformative” or is critical of the original.
- It is inappropriate to require that the parody acknowledge the original work. This is already implicitly served by all successful parodies, which rely on the allusion to the original.
In Australia, the Copyright Act 1968 (Cth) was amended in 2006 to include a fair dealing exception for parody and satire. The terms “parody” and “satire” were left undefined and the exception has yet to be considered by the Australian courts. The scope of the exception is somewhat uncertain. A lot has been written in the academic literature as to what will be the breadth of the exception. Will empirical data, such as the UK studies, play some part in defining the scope of the exception? It remains to be seen.