Legal Viability of a Parody
Updated: Sep 28, 2021
An escalation in creation of digital content in the past decades has not only raised issues regarding the original content created but also the content derived from original works of other authors. A trend of recording exaggerated iterations of an existing work has emerged across the prevalent social media platforms. These reiterations are widely known as a parody. A parody refers to an imitation of someone else’s work with the objective to criticize or ridicule such work. Parodies are predominantly made with the intention of creating a satirical work. This form of reiteration of a work requires a person to copy an original work and transform it into a new piece . From a legal perspective, this raises two important questions:
Whether a parody leads to copyright infringement due to the substantial similarity between the new work and the original work? and
Whether a parody which is confusingly similar to the original work would infringe the original owner’s trademark rights?
While the position of a parody under the Copyright law has been established, its viability under the Trademark law is yet to be explored to its limits.
The most common issue raised in any copyright infringement claim is whether the subject-matter of the contested work is similar to the original work or not. However, since a parody is by definition, an imitation of the original work, consequently, there exists an inherent similarity between the two works.Thus, to determine if a parody contributes to copyright infringement, one must determine what qualifies as a criticism instead of mere intimation. This issue was raised in the case of Civic Chandran and Ors. v C. Ammini Amma and Ors., where the Court held that to determine if a parody is an infringement, the intent of the appropriation must be considered. If the similarity between the two works is to convey the critical aspects of the original work to the public, the same would amount to fair use and be exempted from being considered as an infringement. As a case of fair use, a parody made for the purpose of review or criticism would be protected by the virtue of Section 52(1) of the Copyright Act, 1957. In this case, the Court laid down a three-condition test. It was established that while considering the intent of a parody, to determine infringement, the following are considered:
The quantity of the content taken for comments/criticism
The purpose of copying
The commercial impact of the parody on the original work
This case has been used on multiple occasions as an established precedent for defending a parody against a copyright infringement case.
Having established a positive reputation as a defence in copyright infringement cases, the authors of a parody further intended to explore the same. ‘Parody’ is often used as a defense against a trademark infringement claim. While the prominent objective of a trademark is to categorize the seller’s goods as different from those of the others’, it is also incorporated as a marketing strategy which leads to association of a trademark with its brand name in the heads of the consumers. Since a parody is essentially a commentary on another work, one of the requirements of such original work is its popularity. For a parody to be well known among the consumers, it seems imperative that the consumers be well aware of the original work in which the trademark exists. Thus, parodies are mostly made for works associated with well-known trademarks. A trademark parody, in other words, refers to a satirical oor sardonic reiteration of a brand name or a logo,, etc. This is usually followed by a concern on the part of the trademark owners regarding a negative portrayal of their brand due to the critical or comical nature of the parody.
TATA Sons Ltd. v. Greenpeace International & Anr.
One of the only landmark cases in this matter is the Tata v. Greenpeace case. The subject matter of this case was an online game called TATA v. Turtle created by Greenpeace International depicting Turtles escaping the TATA logo, inspired by Pac-Man. The logo here was named ‘Ratty’, seeming to refer to Mr. Ratan Tata, the then chairman of the TATA group. The defense stated that the game was solely created for spreading awareness about the dangers to be faced by the Olive Ridley turtle species on construction of a certain port in Mumbai. While TATA filed a case of defamation as well as trademark infringement, Greenpeace claimed a lack of regulatory compliance on behalf of the petitioners. The case was filed in the Delhi High Court where the TATA group claimed that the fact that the defendants used an online game to allegedly only spread awareness depicts dishonest intent on the part of Greenpeace international. The court explored Section 29(4) of the Trademarks Act, 1999 which establishes that for a registered trademark to be considered as infringement, the use of the mark must be done without due cause. Additionally, the court also stated that since Greenpeace had no intention to make a profit out of the game but merely to spread awareness, there is no proof of any malicious intent. The court incorporated parodies as a part of free speech guaranteed under Article 19(1) of the Constitution of India. Further, the court also stated that if a parody is made to draw the attention of the public towards the trademark owner’s actions, the same cannot be considered as unreasonable.
DEFENCE OF PARODY IN THE U.K.
The defence of parody under the fair use doctrine is prevalent in the U.K. This exception to infringement was introduced in the U.K. via the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014. But there is no similar precedent under the trademark law. Thus, in situations where a parody of a trademark is made, an issue is raised of whether these parodists are unduly impinging upon the rights of the original owner. In the leading case Ate my heart Inc. v. Mind Candy Ltd., a similar issue was raised by Lady Gaga regarding the use of the name “Lady goo goo” by the defendant. The court had held that since the defendant’s ‘parody’ had an outright negative impact upon Lady Gaga’s reputation, and was solely done with the intention to garner commercial success, the defence of parody as an exception to infringement shall not be applicable.
DEFENCE OF PARODY IN THE U.S.
Unlike the U.K. laws, the defence of parody in the U.S. is not only established under the Copyright law but also exists in Trademark infringement cases. One of the most common instances of a trademark parody is the multiple comical imitation of the “Starbucks” logo. For example a coffee-shop in LA markets its goods under the name “Dumb starbucks”. Such instances attract their fair share of attention from the original trademark owner in the form of infringement suits. The reasoning behind these suits is to ward off any negative publicity attached with the original brand due to the parody. A landmark case in the US is that of Campbell v. Acuff-Rose inc. where a parody of the song “oh pretty woman” was successfully defended due to the transformative nature of the song which was held has a more prominent consideration than the commercial nature of a parody.
While there are not a plethora of instances defending parodists, it has been iterated via judgements and implied through the existing legislations that a work of parody does not amount to infringement. But there are multiple factors to be considered to ensure that the defense of parody is not being exploited with mala fide intentions. These factors include ensuring that the intention of the parodist is not malicious, that the work is not imitated for a commercial gain, or for expunging the original owners of their intellectual property rights. Lastly, it is essential that a parody does not amount to mutilation or desecration of a work in a manner that it hurts the reputation of the original owner. Under the Copyright Law, the same is guaranteed by the preservation of moral rights of an author under section 57. In cases of Trademark infringement, it is essential to ensure that a parody is not defamatory in nature but merely satirical or critical. Though there is no codified legislation which ensures the same, the precedents play an important role in protecting the rights of a parodist. But it is imperative for the parodists to ensure that their parody only takes the necessary parts from the original work.
Articles and Online Sources
Chadha & Chadha Intellectual Property Law Firm, Brand Name Parody: Does it mean infringement?, September, 2017, https://www.lexology.com/library/detail.aspx?g=fd17ce8d-577a-496c-8099-23abc38d9c98
D Young & Co., Dumb and Dumber? Parody Defences in the UK, February, 2014, https://www.dyoung.com/en/knowledgebank/articles/starbucks0214
Posner, Richard A. “When Is Parody Fair Use?” The Journal of Legal Studies, vol. 21, no. 1, (University of Chicago Press, University of Chicago Law School), 1992.
Raja Selvam, Parodies and trademarks in India, March 2004, https://selvams.com/blog/parodies-and-trademarks-in-india/
Vatsala Singh, Parody: Fair Use Or Infringement?, November 2018, https://www.mondaq.com/india/trademark/756930/parody-fair-use-or-infringement
Ate my heart Inc. v. Mind Candy Ltd., (2011) EWHC 2741.
Campbell v. Acuff-Rose inc., 510 US 569 (1994).
Civic Chandran and Ors. v C. Ammini Amma and Ors., Manu/KE/0675/1996
TATA Sons Ltd. v. Greenpeace International & Anr. 178 (2011) DLT 705.
Copyright and Rights in Performances (Quotation and Parody) Regulations, 2014.
Indian Copyright Act, 1957.
Trade Marks Act, 1999.