To what extent can “parody” be used as a defence to copyright infringement claims?

What is the issue?

What constitutes ‘parody’?

The preliminary ruling from the Brussels Court of Appeal sought clarification on ‘parody’ under Article 5(3)(k)-InfoSoc Directive. This allowed EU member states to introduce their own limitation or exceptions to copyright law for, “ the rights of production, communication… for purpose of caricature, parody or pastiche’, but did so without providing definition of these concepts”[1]This has led to many problems in implementation for  protecting individuals parodying work.

Is ‘Parody’ a ‘catch all’ term for the likes of ‘pastiche’ and ‘caricature’?

The issue with the words “parody, pastiche, and caricature” is that historically they’ve meant different things, in different members of the EU. This brought issues with implementing the ‘parody exception’, which allowed for copyright of works in the context of ‘parody’ which brings issues implementing and using the ‘parody exception’.

Some have argued that parody encompasses pastiche as well as caricature. However, others have argued that they’re all distinct characteristic’s that overlap. Some caricatures can pass as parody, others cannot. Article 5(3)(k) InfoSoc-Directive is clear to show the separate wording of “parody, pastiche, or caricature” meaning the EU legislators may not intend for these to be under parody, but as three separate categories and at times overlapping. The Belgian and French laws referred to them as ‘La parodie, le pastiche, et la caricature”.

Is parody an agreed upon concept in the EU?

ECJ was asked to address during the Deckymn case, if the ‘parody exception’ was a ruling for national law, or autonomous concept for the entire EU? The ECJ held it was an ‘autonomous’ concept.

The above has led to many questions, such as does humour have the same “meaning” in Ireland, France, and England?  The ECJ addressed this by creating requirements for parody.

In Article 5(3)(K)-Info Directive:

(1) Evoke an existing work while being different than it; and

(2) be an expression of humour or mockery.

If you require assistance with a copyright dispute please contact one of our lawyers.

1. K. Olver (work experience student) and Daniel Crate