Parody: Fair Use or Infringement?

19th November, 2018 - 4:11 am Categories: Copyright Infringement 0 Comments

Parody is an imitation of someone else’s work with a view to ridicule or criticize such work. Since parody is an imitation, does it amount to copyright infringement of the owner’s original work? How do laws protect the right of copyright owner along with the parodists?

It is a general principle that no copyright lies in ideas, subject-matter, themes, movie plots till the expression of the same are different. If presentation of subject-matter or an idea is similar to the original work, then it amounts to copyright violation. In relation to ‘Parodies’, since it is derived from the original work of another writer or artist, it is difficult to draw a line between creative criticism and imitation. This issue was cleared in Civic Chandran case[1] wherein the Court held that ‘the purpose of reproduction of artistic work i.e. counter drama was not misappropriation, to produce a play similar to the original. Rather, the purpose was to criticise the idea propagated by the original drama, and to expose to the public that it had failed to achieve its real object. Since copying was for the purpose of criticism, it amounted to fair dealing and did not constitute infringement of the copyright. The Court also laid down 3-condition test in compliance to which the alleged infringer/ parodist can take the defense of fair use: “(1) the quantum and value of the matter taken in relation to the comments or criticism; (2) the purpose for which it is taken; and (3) the likelihood of competition between the two works’. In addition to the 3 condition test, an essential element involved, in relation to parody, is the ‘Intent’. It has been clearly established that making parodies of original work with a motive or intent to exploit it commercially or ride on its goodwill to derive profits shall constitute copyright infringement[2].

Indian Copyright Act, 1957 provides for exemption of fair use under Section 52(1)(a) which stipulates that fair dealing with any original work, for the purpose of criticism and review, whether of that work or of any other work does not amount to infringement of copyright.

In view of the law laid down, it is clearly inferred that in order to avail the defence of fair dealing the parodist must show that there was no intention, to compete with the copyright holder of the work and to derive profits from such competition and also, the motive of the alleged infringer in dealing with the work must not be improper.

Parody is often taken as a defence in trademark infringement suits. It has become a common to modify brand names, movie titles etc. to create memes, satirical one-liners etc., and will it amount to trademark infringement? This issue was addressed in TATA[3] case by in which the primary issue before the court regarded a violation under the Trademark Act. Greenpeace – an organisation which works for the protection of the environment – openly objected to Tata’s construction of a port by negatively depicting this in the online game Tata Vs Turtles, where turtles were portrayed escaping the Tata logo. Tata filed a petition for defamation and trademark infringement, and sought damages. Greenpeace countered this with the parody defence. The court found that Greenpeace was not liable on the following grounds:

• Parody is covered by the freedom of speech and expression;
• Parody of a registered trademark is permitted as a reasonable comment if it is intended to draw attention to some activity of the trademark owner; and
• Since the trademark was used in the context of the game to raise awareness, it was not deemed defamatory.[4]

 Conclusion

Indian laws do provide ample amount of defence to parodists, spoof makers etc. against infringement of intellectual property owners as long as there is no mutilation, changes or use of original work to deprive the owners of their rights or commercially exploit the work for profits, and also since parody or satire are of negative nature therefore privacy rights as well as moral rights of the owners are to be kept in mind. Judicial precedents have been relied upon to interpret the fair use exemption with respect to parodies, since there is no codifies legislation for the same.

Author: Ms. Vatsala Singh, Litigation Associate at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at vatsala@khuranaandkhurana.com.

References:

[1] Civic Chandran and Ors. v C. Ammini Amma and Ors., Manu/KE/0675/1996

[2] M/s Blackwood and Sons Ltd. and Others vs. A.N.Parasuraman and Others, AIR 1959 Mad 410

[3] TATA Sons Ltd. v. Greenpeace International & Anr. 178 (2011) DLT 705

[4]https://www.worldtrademarkreview.com/enforcement-and-litigation/india-its-all-name