My Other Joke - 'Getting' the Joke not Relevant to Parody, Says US Court of Appeals

Jokes are rarely ubiquitous, and one that you might get won't necessarily translate as well to your friends, which even could be construed as offensive by some. This clear subjectivity when it comes to humor is well known by most, but this has been rarely introduced as an argument in a court of law (at least in this writer's knowledge). With that said, would 'getting' a joke be a part of the considerations surrounding parody or satire, or would a genuine attempt at being funny be such, even if some don't 'get' the joke? A question many didn't know they wanted to know the answer to was addressed recently by the US Court of Appeals.

The case of Louis Vuitton Malletier SA v. My Other Bag, Inc. dealt with the sale of canvas tote bags by My Other Bag, which feature the name of the company on one side and a caricature image of iconic and well-known designer handbags on the other, including brands like Louis Vuitton Chanel, and Fendi. The joke is a carry-over from bumper stickers with the wording "my other car" that plays to the idea of owning both the luxury item and an inexpensive alternative (without actually having the former, most likely). Louis Vuitton didn't take well to the use of their designs on MOB's tote bags and took the company to court for trademark infringement, trademark dilution and copyright infringement.



Daniela didn't understand why she was arrested because of
her 'other' bag

The Court of Appeals dealt with the matter of trademark infringement first, and quickly saw that there was no infringement by MOB as there were "…obvious differences in MOB's mimicking of LV's mark, the lack of market proximity between the products at issue, and minimal, unconvincing evidence of consumer confusion". This follows the decision by the District Court of New York at first instance, who determined that while the mark and its use are similar, there are clear, distinctive differences that distinguish MOB's image of Louis Vuitton's design, and that the two products compete in an entirely different marketplace (with Louis Vuitton clearly catering to an exclusive, luxury market, and MOB to a very casual market).

The Court then moved onto the question of trademark dilution (a case of using a well-known trademark in a different product type entirely, diminishing the distinctive value of the original mark), which at first instance was dismissed due to the defence of fair use through parody by MOB. Similarly to the above consideration, the Court of Appeals didn't take long to explain their findings, affirming that "…[MOB's bags] mimic LV's designs and handbags in a way that is recognizable, they do so as a drawing on a product that is such a conscious departure from LV's image of luxury… as to convey that MOB's tote bags are not LV handbags". Even though Louis Vuitton's marks were used, albeit in a humorous way, they still did not act as a 'designation of source', since the bags did have the MOB branding present in addition to the caricature image that shows a clear designation of origin contrary to Louis Vuitton. Clearly the trademark couldn't have been diluted in any way, as the products didn't cross over into each other's markets, nor shared features that would lead to them being confused by consumers.

The final point of consideration was that of copyright infringement, which the Court dispatched in very short terms. The Court saw that "…MOB's parodic use of LV's designs produces a "new expression [and] message" that constitutes transformative use". This, in addition to the benefit derived from the remaining fair use considerations or their irrelevancy to the matter, aided MOB's case under copyright infringement, with the claim being dismissed entirely. One can appreciate the transformative use of Louis Vuitton's designs, as the cartoonish image along with a changed logo (featuring, instead of the LV logo, a MOB version of the same) made the design something new through its humorous portrayal of the design. Ultimately, the Court of Appeals dismissed Louis Vuitton's appeal entirely.

The case illustrates the strength in a genuine parody defence, and as was discussed by Justice Furman "...the fact that Louis Vuitton at least does not find the comparison funny is immaterial; Louis Vuitton's sense of humor (or lack thereof) does not delineate the parameters of its rights (or MOB's rights) under trademark law". Many proprietors of high-end, well-known brands might not like, or even get, the parodies that make fun of them, but the law should allow this type of commentary or use, provided it is bona fide parody. It serves these brands well to pick their fights carefully, since a well placed joke can make fun of you, but rash acts of litigation can do more damage.

Source: JDSupra

Chuckles or No - European Court of Justice Takes on Parody

European fair dealing is ever so slowly growing into its big boy shoes, and amidst that growth there are some growing pains that need to be sorted out by the guardians, the judiciary. With new fair dealing exceptions only days away from coming into force here in the United Kingdom, it seems only pertinent that the most influential court in Europe deals with an issue that is so close to this new set of fair dealing exceptions; parody and satire. Although the UK's cousins across the pond in the United States and Australia have accepted parody as a form of fair dealing or use prior to the old Kingdom, the UK will face challenges to this new regime in the coming years - for which European consideration is always welcome.

The case in question is Deckmyn v Vandersteen , decided only a few weeks ago, which dealt with a drawing relating to a recent election in Belgium, which was released in a calendar edited by Mr. Deckmyn, who is also a member of the Vlaams Belang party. During an event Mr. Deckmyn handed out the aforementioned calendars, on the cover of which was the picture at issue in the matter; an image which highly resembled that of the book "De Wilde Weldoener", an edition of the famed Suske en Wiske comic books. As explained by the court: "...[the] drawing is a representation of one of the comic book’s main characters wearing a white tunic and throwing coins to people who are trying to pick them up. In the drawing at issue, that character was replaced by the Mayor of the City of Ghent and the people picking up the coins were replaced by people wearing veils and people of colour". Subsequently the Vanderseteens, relatives of the comics' creator and holders of the copyright, among others, brought an action against Mr. Deckmyn asserting copyright infringement.

Under the Belgian Law on Copyright and Neighboring Rights, a copyright protected work is not infringed "[o]nce a work has been lawfully published, its author may not prohibit... caricature, parody and pastiche, observing fair practice". Mr. Deckmyn argued that his use of the comic's cover would be protected from infringement as a fair use under parody, yet the questions posed to the ECJ were:

"1. Is the concept of “parody” an autonomous concept of EU law? 
 2. If so, must a parody satisfy the following conditions or conform to the following characteristics: display an original character of its own (originality); 
display that character in such a manner that the parody cannot reasonably be ascribed to the author of the original work; 
seek to be humorous or to mock, regardless of whether any criticism thereby expressed applies to the original work or to something or someone else; 
mention the source of the parodied work? 
3. Must a work satisfy any other conditions or conform to other characteristics in order to be capable of being labelled as a parody?" 

The ECJ was faced with the definition of what amounts to parody, and whether this concept was truly autonomous within the EU law, more specifically Directive 2001/29.

The court quickly established that the concept of 'pardy' was indeed an autonomous concept in European law, as the Directive made no express mention of any national laws, giving the law a uniform interpretation within the Union, although Member States as still very much able to limit or extend the exception beyond its Union interpretation.

The second and third questions took the bulk of the ECJ's judgment, effectively determining the definition of a parody in European law. The court first established that, as the term is not defined in the Directive, that its interpretation would be "...determined by considering its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part". This in the court's judgment, while agreeing with the Attorney General's definition, is "...first, to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery". This writer would like to further add that, in most cases, national courts would also assess whether the parody itself, or the mockery or humor, is actually a genuine expression of mockery, rather than just a guise to prevent the courts from finding infringement.

Parodies can evoke a multitude of feelings

The court then assessed the conditions posed in the reference to the ECJ and whether they should be treated as a part of the exception in its application. As the provision is there to safeguard legitimate uses of copyrighted content, the court heavily empathizes that its scope "...of that provision... [should not be] restricted by conditions... which emerge neither from the usual meaning of ‘parody’ in everyday language nor from the wording of that provision". A much less restricted interpretation facilitates both the freedom of expression and a public interest in legitimate parody, as noted by the court.

The exceptions application has to be balanced, even in the light of its much less restricted interpretation, as noted by the court: "...the exception for parody... must strike a fair balance between, on the one hand, the interests and rights of persons... and, on the other, the freedom of expression of the user of a protected work who is relying on the exception for parody". This assessment has to take into account all circumstances in each instance, and should not be a mere prima facie 50/50 assessment.

The ECJ then relayed the final decision to the Belgian national courts, but did however express a need to assess the work on potential racial impacts, and negative connotations on such ground, as the work did indeed depict individuals of certain ethnic background in a very compromising light.

The UK government has already issued some guidance on the new exceptions coming into force next Wednesday, which helps in the future assessment of parody in this new regime. In their definition: "[t]he words “caricature, parody or pastiche” have their ordinary dictionary meanings. In broad terms, parody imitates a work for humorous or satirical effect, commenting on the original work, its subject, author, style, or some other target. Pastiche is a musical or other composition made up of selections from various sources or one that imitates the style of another artist or period. A 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". Yet again this writer would have to point out that the use of a work under such a definition would still entail an assessment of whether the parody, pastiche or satire is well and truly such a work, and not just a faint attempt at parody purely to use the work at no cost.

All-in-all the ECJ's definition makes sense, at least to this humble writer, and does afford genuine parodies a wide shield in protecting their legitimate expression. Should conditions be set on the application of parody, such as in Belgium, the hurdles could become nearly insurmountable, and curb any real interest or willingness to create parody works. How the UK courts will apply this new exception remains to be seen; however the ECJ's considerations will undoubtedly serve as a great starting point.

Source: The 1709 Blog

The United Kingdom (Finally) Updates its Copyright Exceptions

After what seems like a long year after first touching on the new recommended changes to the United Kingdom's ageing Copyright, Designs and Patents Act's exceptions, the UK government has taken its first steps to modernize its copyright scheme. Although only certain provisions will have come into force on June 1st, more specifically ones relating to research and private study, text and data-mining, education and teaching, archiving and preservation, public administration and accessible formats for disabled people, some will remain for further Parliamentary consideration. These are provisions dealing with personal copies for private use, caricature, parody and pastiche and quotation. Below I shall endeavor to expand more on the changes, and to elaborate more on the up-and-coming changes as well.

Research and Personal Study, Education, Libraries, and Archives

Although the provision for personal research and study has existed for a while, it severely limited the provision nonetheless, and merited expanding. What the now in-force Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 does is extend the scope of the provision, allowing for the use of broadcasts, films and sound recordings to be included which were omitted prior to the Regulations' introduction. This is a sensible change as leaving out these other mediums would hinder research endeavors, especially when the copying of digital versions of such works is easier than ever.

Aaron was excited for these changes - a bit too excited

The Regulations also extend the copying capabilities of libraries and archives, while adding educational institutions and museums to copy for the sake of their educational purposes. This is important as before museums and galleries for example, would have infringed copyright in the event that they made copies of works for their displays. In addition to allowing for the copying of newer types of works, the Regulations make express provisions for their use in dedicated displays in these institutions. This clearly aims to further legitimate educational purposes without the hindrance of copyright in doing so. Libraries also are given more express liberties in the distribution and replacement of works within their collections, and allows for librarians to make copies of copyrighted works for individuals for research and study needs within certain limits.

Copying for educational purposes is furthered by the new Regulations as well by creating a new exception for "Illustration for instruction". What this new exception allows is fair dealing for the purposes of education or instruction through newer, more modern means, unlike the current exception which only allows for this when copied by hand. The Regulations also allow for the copying of broadcasts and their distribution for educational purposes, further paving way for more modern, interactive learning methods such as distance learning or e-lectures. Educational institutions are also permitted to copy and distribute copyrighted works to their students and staff, provided only a maximum of 5% of the work is copied, and if the works are distributed via electronic methods, the communication has to be secure. Overall the Regulations clearly further education in the 21st century context, and allow for more effective, robust teaching even when not at University.

Public Administration

Change are made to how public bodies can utilize and distribute copyrighted content through the Copyright (Public Administration) Regulations 2014. The Regulations enable public bodies to copy and distribute copyrighted materials for the purpose of public inspection, and for those bodies to potentially distribute such works for the purposes of dissemination, provided the works are not commercially available. According to the Intellectual Property Office these changes are meant to "...enable more public bodies to proactively share some third party copyright material online, such as material submitted by an individual or business for the purpose of maintaining a public register". This is a significant improvement, as previously these bodies could have only distributed copyrighted works in paper form physically, and not digitally.

Disability Access

Little Horace was already busy making use of the changes

Copyrighted content is made more accessible to people with disabilities, potentially preventing them from accessing or utilizing copyrighted content in their original forms. The Copyright and Rights in Performances (Disability) Regulations 2014 allow for individuals to make personal copies of works in a format which would allow them to enjoy those works should their disability prevent them from doing so, such as making an electronic copy of a book if you are blind for use through screen readers. In addition to giving individuals this right the Regulations also allow for appropriate bodies to make such copies and to supply those to any person's who might need them. Clearly this significantly extends access to copyrighted content for people with disabilities, and fulfills a need which has been neglected under copyright legislation for quite some time.

Personal Copies, Parodies and Quotation

As said above, Regulations pertaining to copies made for private use, parodies and quotation are still under Parliamentary consideration. In a statement made by Intellectual Property Minister Lord Younger, the reason for the delay of these exceptions is purely because there are still "...some questions about the private copying and parody exceptions that [the Joint Committee on Statutory Instruments] would like to discuss with us". This process will delay the introduction of these instruments until at least October 2014.

What the up-and-coming Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 will allow is for the copying of copyrighted works for personal use, provided that the person owns a copy of these works prior to making the new copies. This would include both physical and digital copies which have been bought or gifted to the owner, and excludes any borrowed or rented copies and any streams or broadcasts. This is by far the most needed exception in today's world, and would allow for individuals to make copies of works and to take them with them in a more suitable format. This could be the burning of a CD onto a physical disc for taking with you on a drive, or the ripping of a CD onto your computer and then copying it onto your MP3 player.

Finally, the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 would allow for the quoting of copyrighted content for any purpose, so long as the content being quoted is available to the public and is not quoted beyond the needs of the work in which it is quoted. This extends the ability to use such content for a wider amount of purposes, and not just for criticism, review and news report as under the current exceptions. In addition the Regulation would add a new exception for parody purposes, something which has been lacking in the UK regime for quite some time.

All-in-all the new changes to the current scheme are welcomed and needed, albeit the delay with personal copying, quotation and parody is regrettable. As the world in which we use copyrighted content has changed, so should the law, and this is its first steps into the 21st century.

Retrospective - Parody and Fair Use

Imitation is the greatest form of flattery. A phrase that resonates even today, despite being written by Charles Colton as far as the early 1800s, yet where does one draw the line between mere imitation and copying of another's work? This line is often tread when dealing with parody and copyright, as distinguishing when a work is copied for the sake of utilizing it as a basis for humor, and when it is used as a means for personal gain or notoriety. The issue was brought back into the court's determination in 1994, after the Court of Appeals did not rule on the matter due to division within the bench in Benny v Loew's.

The case of Campbell v Acuff-Rose Music dealt with a song by 2 Live Crew, a rap group, titled "Pretty Woman" which was claimed to being parody of the iconic 1960s song "Oh Pretty Woman" by Roy Orbison. Prior to releasing the song the members of 2 Live Crew sought permission from the publisher of the original to release their version of the song, which was promptly refused by the publisher. Regardless of the denial for permission 2 Live Crew released the song as a part of their album in 1989, still identifying Mr. Orbison and Acuff-Rose in the materials provided with the album. After over 250,000 copies were sold of their new album almost a year later, Acuff-Rose sued the band and their publisher for copyright infringement. The case went all the way to the US Supreme Court after several years of litigation.

What the court had to assess was whether 2 Live Crew's use of the song fell under fair use. The vocal point of the matter was well condensed by the court: "...the need simultaneously to protect copyrighted material and to allow others to build upon it". In this the court had to look at the four factors relating to fair use: the purpose and character of the use; the nature of the copyrighted work; the amount used; and the effect the use had on the potential market value of the original work.

The purpose and character of a work is essentially determining whether the new work adds anything new or substantial to the original, with a further purpose or difference character by altering the first; often mentioned as a 'transformative' work. The more transformative the new work is, the less likely it is that other factors, such as commercialism in this instance, would weigh against in. The court accepted that parody is indeed a transformative function in the creation of new works, and that it could fall under fair use. 

2 Live Crew showcasing just how amazing the 1990s were

The second factor was the assessment of the nature of the original work, meaning whether the original should be protected by copyright. The less 'value' a song has, the more likely it is that the work has not been infringed should it be parodied. The court accepted that Mr. Orbison's original song had value to it and thus could be infringed by 2 Live Crew should their infringement be significant enough. However the court did express that the factor "...is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works". The core of parody is the use of the original work as a means to deliver the humorous approach to the work itself. 

The third factor is one where the amount used, often referred to as substantiality, has to be looked at. Better expressed by Justice Story: "...the quantity and value of the materials used"; the quantity and quality of the material which was used in the creation of the parody. The court tried to approach the issue in recognizing its uniqueness to other instances of fair use: "Parody's humor, or in any event its comment, necessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the tension between a known original and its parodic twin. When parody takes aim at a particular original work, the parody must be able to "conjure up" at least enough of that original to make the object of its critical wit recognizable". The court laid down the foundations for a test to be used in future cases in determining instances of parody, where the original song should be recognizable in the parody, however not too much of the original can be copied. The court saw that 2 Live Crew had not taken a substantial amount of the song, having only used the recognizable bass riff from the beginning of the song and then creating something of their own through the rest of the song. Had they copied Mr. Orbison's song completely, both musically and lyrically, to a degree where it would be hard to distinguish the two, the copying could have been substantial.

Roy forgot he was indoors

The fourth and final factor is the potential impact on the original work's market. This effect has to be a negative one for there to be infringement, for example detracting from the sales of the original song or the image of the song through adverse conduct. The court did finally decide that 2 Live Crew's rap version of the song did not harm the market of the original, due to them belonging to completely different markets to begin with; the original to a more rock-oriented market, and the latter to a rap market. The court did however mention that a parody could potentially still cause harm to the original's market should the right circumstances befall it. A possible example of this is a similar song parodying another in a similar style, in this instance had 2 Live Crew made a rock version it could potentially cause harm. Any effects to that market would then count against finding the use as one that falls under fair use. 

Through Campbell v Acuff-Rose the court unanimously said that parody is a fully accepted form of fair use, should the actual copying of the work be done for a legitimate parody purpose. An artist cannot copy another's work merely in the guise of parodying the song, while still attempting to profit from the potential confusion as to the original song. As stated by Justice Kennedy in his separate opinion:

"Fair use is an affirmative defense, so doubts about whether a given use is fair should not be resolved in favor of the self proclaimed parodist.We should not make it easy for musicians to exploit existing works and then later claim that their rendition was a valuable commentary on the original... If we allow any weak transformation to qualify as parody, however, we weaken the protection of copyright. And underprotection of copyright disserves the goals of copyright just as much as overprotection, by reducing the financial incentive to create".

The United Kingdom Looking Ahead with new Copyright Exceptions

In a recent blog post I talked about the possible direction where Australian copyright was heading based on a Discussion Paper released by the Australian Law Review Commission. Well, it seems like the old motherland has awoken from its copyright hibernation in the wake of Australia's steps forward. In an effort to modernize copyright, the UK Intellectual Property Office is seeking opinions based on new potential exceptions which are under consideration: an exception for private copying, parody and quotations. I think each of these potential categories merits examination as to what their current formulation is, and where they could be headed.

Exception for Private Copying

In their plans, the UK Government plans to introduce "...a narrow private copying exception which will allow an individual to copy content they own, and which they acquired lawfully, to another medium or device for their own personal use". What this clearly is is an equivalent for something Australia has already had for some years; format shifting. Provisions such as this will allow you to copy your lawfully bought content, such as music or movies, to a different format - often from a CD onto your MP3 player for example. There is a distinct difference to what the UK approach, at least for now, is when compared to the Australian one. In further expanding on how the copying will extend, the IPO says that "...it would not allow them to make copies of their CDs and give them to other people". If this were to be looked at from a literal perspective, should you make a copy of a CD for your kids to listen to on their iPods, or give a copy of a DVD for your cousin to watch on a Saturday night, you would be infringing copyright. The Australian provision allows for copies to be given to family or people living in your household, but on the condition that those copies are of a temporary nature and not given to keep. If the IPO would only permit the copying for personal use in excluding family they would go against the very principle why they're enacting these additions to begin with: "The exception aims to align the law with behaviour most people consider to be reasonable, to remove unnecessary regulation, and to help build confidence in and respect for copyright". 

Steve hasn't quite gotten the hang of "private copying"

Arguably the exception should be shaped to be similar to that of Australia's approach. The Canadian provision only allows for the copying for the individual, much like the potential UK provision, so the direction where this could head is unclear. One could easily predict that the courts could potentially extend the provision to apply to family, but that would remain to be seen. A draft of the section can be found in the document discussing the exception. 

Exception for Parody

An exception that the UK has needed for the past several years, yet again lagging behind its Australian cousins, is the exception to allow for the use of works for parody, caricature or pastiche. As the IPO explained, this would "...give people in the UK’s creative industries greater freedom to use others’ works". If introduced the provision would be included with other fair dealing provisions, so the use would have to be 'fair', preventing the use of works in the veil of parody to purely abuse it for personal gain. A draft of the possible provision can be read in the IPO's documentation as well.

Exception for Quotation

The final exception being introduced is one which would amend the current exception for criticism and review to one allowing for the quotation of material, not merely restricting it to those uses. Broadening the existing fair dealing exception seems like a perfectly sensible option, and in the words of the IPO: "ensure[s] that copyright does not unduly restrict the use of quotations for reasonable purposes that cause minimal harm to copyright owners, such as academic citation or hyperlinking". Should the provision be enacted it would be the first of its kind, as both in Australia and Canada similar provisions relating to criticism and review, on the face of the provisions, would be much more restrictive.

Source: IP-Watch