Copyright Law for Animators: Parody, Caricature, and Pastiche
Skwigly
In Disney’s The Jungle Book, King Louie famously sang “Ooh bi doo, I wanna be like you. I wanna walk like you, talk like you too. You see it’s true,” as he and his monkey tribe danced and imitated Mowgli, the “mancub”and expressed desires to be human.
Imitation is not an art form reserved for fictional characters. Many within the animation industry rely on applying a certain degree of imitation when expressing their art. Whether in the form of parody (imitations of work for humorous or satirical effect), caricature (portrayal of subject in a simplified or exaggerated way) or pastiche (musical or other composition made up of selections from various sources that imitates the style of another artist or period), borrowing and building upon the idea or style of another is no new art form.
As most creatives are aware, under UK copyright law, it is an infringement to use, adapt, exploit etc the copyright works of another without the copyright owner’s consent. However, seeking permission to use copyright work for purposes of parody, caricature or pastiche is often met with a firm no or a demand for payment of an extortionate licence fee, potentially stifling creativity.
The Government appreciated the importance of making the copyright legislations compatible with the digital age. It was set to introduce new classes of exceptions to infringement of copyright under the main copyright regulations (Copyright, Designs and Patent Act 1988). These were supposed to come into force on 1 June 2014 and included exceptions which would make copyright works more accessible for disabled people or which would bring the law up to date with modern teaching.*
Amongst the proposed exceptions was the fair dealing of copyright works for purposes of parody, caricature, and pastiche. The philosophy underpinning the exception was that a person would be able to use the copyright works of another without obtaining the owner’s prior consent, provided that they dealt with the work fairly. No definitions of what constituted fair dealing or indeed parody, caricature or pastiche were offered in the draft regulations. It followed that the dictionary definitions of parody, pastiche, and caricature were to apply. Case law on the other hand was to help with deciphering “Fair dealing”. It was to be understood as dealing with another’s work as an honest and law abiding person would. Therefore, not using more than necessary and not competing with the legitimate interests of the owner.
In a dramatic turn of events, the Government made a last minute “u-turn” and pulled proposals to introduce fair dealing for the purposes of parody, caricature and pastiche as an exception to copyright infringement. However, it continued with implementing many of its other proposed exceptions. IP Minister, Lord Younger, explained the decision in a statement in which he said “While this delay is disappointing for both the government and many of our stakeholders, the government remains firmly committed to implementing each of these important exceptions to copyright law as soon as possible”.
Although, disappointing that the UK remains behind its European counterparts by not implementing the particular exception, Lord Younger’s words do offer an element of hope. They suggest that the day will soon come when the exception is recognised and becomes part of UK law.
The Government has since pointed out that the exceptions to the parody exceptions should be coming into force on 1 October 2014 (provided that there are no other U-turns). Please watch out for the next blog on Skwigly which will provide further information on the parody exceptions and provide clarification on the meaning of “parody” offered by the European Court in the recent Deckmyn. case. Watch this space! However, until the exceptions come into force, using another’s copyright work without permission for purposes of parody, caricature or pastiche remains a potential infringement of copyright under UK law.
*Please note that not all proposed copyright exceptions have been listed or covered in this article.