The Digital Media Project

 

Source

Philip Merrill

Title

TRU #46 of parody

No.

040909merrill06

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/09/09

 

#

Criteria

Description

1.

Name of TRU

Right of parody

2.

Summary description of TRU

a caricaturish and usually humorous form of criticism involving mocking or imitation often in outlandish style, generally incorporating direct references or reproductions of elements from some other work being mocked

3.

Use records of TRU

Perhaps parody is best known in politics because of the tendency of political partisans to caricature opposition candidates. Indeed political cartoons were used centuries ago, for example portraying a government minister or foreign ruler in an exaggerated and funny manner. Several rules of thumb distinguish instances of parody from unauthorised adaptations, for instance:

  • Is there something value-added about the presentation, drawing on its own originality and not merely relying on the ideas and expressions of whatever is being parodied?
  • Can the parody be clearly distinguished from the original being depicted or satirised (although technically, "satire" is an independent and less-protected legal category, see U.S. Supreme Court decision below), and is it clear that the parody is in fact a parody or effort at humor?
  • Is the so-called parody actually funny? Is it true to its expected own purposes of heaping ridicule and scorn -- possibly in a good-natured way -- upon the object of its derision and tomfoolery.

Parody is often resorted to in the absence of more direct means of effective criticism. Its ridiculous or satirical aspect can be a smokescreen to convey a deeper truth or complex concerns. Related to this is a remark made regarding science fiction by John Balcom in his translator's preface to "The City Trilogy" by Chang Hsi-Kuo. After referring to the writers Clarke, Asimov, Dick and Heinlein, Balcom says, "During the McCarthy period and after, writers' expression of radicalism and veiled critiques of contemporary society in the States were largely confined to this genre. Its obvious fictitiousness allowed them to question reality and examine larger truths unimpeded by political considerations."

4.

Nature of TRU

Parody is more a recognized right than it is legislated. Its closest approximation in legislation is France's Intellectual Property Code Art. L 122.4(4) exempting "parody, pastiche and caricature, observing the rules of the genre." The work being parodied must have already been published. Little other legislation approaches France's specificity.

At http://www.wipo.int/documents/en/meetings/2003/sccr/pdf/sccr_9_7.pdf p. 72, Prof. Sam Ricketson observes that there is room for potential tension between this right in France and the EC Information Society Directive 2001/29/EC. He says, "The only exception in Article 5 that may give rise to obvious problems is Article 5(3)(g) use for the purpose of 'caricature, parody or pastiche.' This does not fall within any of the specified exceptions recognized under Berne, although it is conceivable that such an exception could arise under Article 9(2) in relation to reproductions and might likewise be justified as a minor reservation with respect to performing and broadcasting rights. It will be necessary for this to be so, however, for the purposes of both TRIPS and WCT compliance, as both these treaties do not envisage that members can create new exeptions or limitations that fall outside what is allowed by Berne". http://europa.eu.int/information_society/topics/multi/digital_rights/doc/directive_
copyright_en.pdf

The problem with 9(2) and fair use generally is we are cast unto the land of the vague. This is aptly summarized in the U.S. Supreme Court decision Campbell v. Acuff-Rose Music 510 U.S. 569 (1994). (online at http://supct.law.cornell.edu/supct/html/92-1292.ZO.html) Justice Souter writes, "We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. ... The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop." In other words, a true parody is not a derivative adaptation, or at least it is authentically more than that.

Justice Souter draws the line where we may metaphorically picture it as shores of the flowing stream of the original author's economic exploitation, in other words the same as applyng the Berne Article 9(2) standard. Treating parody as a form of aftermarket criticism, unprotectable by the original author, coincides with the traditional exemption for parody from requiring the original author's actual permission.

In Goldstein's main treatment of parody at International Copyright section 5.5.I.2.A, he quotes Professor André Françon as saying, "the very principle of the theory of parody is that the parodist may indulge in his art without need to obtain authorization from the author of the parodied work. It was feared that, if such authorization had to be obtained, it would be refused by an all too conceited author. Consequently, it seems preferable to state that no authorization was necessary and that there is, in this respect, an exception to the author's monopoly to exploit that work." So in other words, parody is a very powerful social license to do something based on another author's work without permission from the author, but the responsibility that is taken on is to actually create an original, authentic parody in itself.

5.

Benefits of TRU

This is a free-expression issue benefiting society in general, or an author wanting to create a parody. The person or work being parodied might be harmed but supposedly, this is only allowed in certain narrow ways.

6.

Possible digital support

In Souter's decision above, he compares elements of parody with quotation and other criticism. On the other hand, this comparison might be largely philosophical. While one can imagine a parodist providing a commentary, like a Director's comment soundtrack on a DVD, referring lovingly to things they found ridiculous by means of quote, this clearly is not the form parody normally appears in. A parody is normally a seamless and humorous recreation of what is being ridiculed, for example if the subject of fun takes themselves very seriously, a parody might be expected to also take itself very seriously. Perhaps the work as a whole should invoke some sort of quote to the parodied work as a whole. This could be useful. If a famous director is parodying a foreign director and then they are sued by Joe Schmoe Nobody, it might protect the famous director to have documented what it was about the foreign director that they were parodying.

While the analogue law presents the two markets for exploitation as non-intersecting -- either in the water of the author's stream of rights or else on the shore, excluded as aftermarket criticism -- it is possible digital cross-marketing could occur. For example, if an attractive actress is making a parody of another attractive actress, some men could be expected to like both shows. There must be examples with appeal of a less physical kind, for example a humorous rendition of American history might help a student learn. It could have questions after joking skits such as, was the Norman Conquest really accomplished by a guy named Norman slightly after World War II during a sporting event? Or did Louis XIV really fight a mongol Russian warlord Vissaly in the year 605, naming his gothic palace "Versailles" after Vissaly because his queen couldn't pronounce Vissaly? These are absurd examples, but a significant fraction of the U.S. population can't find the U.S.A. on a map. A set of parody questions could reference a serious American History textbook and be sold as a premium study aid service.

7. Requirements The User shall be able to declare whether theirs in an original new work and, if applicable, link to an influential precursor that is being referenced. Although originality would initially be implemented as user-declared, such representations could always be challenged and/or confirmed by third-parties.

8.

References