Parody as fair use under Indian Copyright Laws
The word ‘parody’ refers to work that uses humor as a means to critique, ridicule, or expose the flaws in existing work. A parody, by its nature, requires the audience to recognize the original work, and the way the work is critiqued or ridiculed. For this reason, a parody is argued to be dependent upon and is said to borrow from the existing work.
Origin & History of Parodies
One of the first examples of parodies comes from ancient Greece where writers would imitate the characteristics of poetry, or tragic plays in a humorous context. Parody took its roots in these Greek interpretations of existing works in a humorous manner, which did not necessarily ridicule such earlier work. This is also reflected in the term ‘parody’ itself as the Greek prefix ‘par’ or ‘para’ is used to indicate something next to, beside, or related to another thing and may also be used to refer to something that is opposite or counter to such a thing. Since parodies have taken slightly varied meanings and evolved through time, it is challenging to define or limit their scope.[i] Parodies, today, are even more broadly understood. It may be expressed in any artistic medium, and may not necessarily critique the work in itself – sometimes, it may also be used to criticize or highlight the theme, author, doctrine, philosophy, ideals, or even a particular subject.[ii]
Fair Dealing & Legality of Parody
Generally, any unauthorized use of copyrighted material will amount to copyright infringement. However, some unauthorized uses of copyrighted material are permitted by the law without being considered as infringement because the public should be entitled to freedom of speech and expression. Fair use or fair dealing refers to the principle which allows people to make non-infringing use of copyrighted material for criticism, news reporting, teaching, review, etc. For instance, if one wishes to criticize a novel, one should have the freedom to quote a portion of the work without the need to ask for permission.[iii] In Blackwood & Sons Ltd. v. A.N. Parasuraman[iv], the Court held that in order to constitute fair dealing, there must be no intention on the part of the alleged infringer to compete with the copyright holder of the work and to derive profits from such competition. Further, the motive of the alleged infringer in dealing with the work must not be improper.[v]
Parody as a means of political commentary has existed in India since the inception of an opposition press during British rule.[vi] Although the term ‘parody’ is not specifically mentioned anywhere in the Indian Copyright Act, 1957, it can be read into Section 52(1)(a)(ii) which provides for criticism or review of work as fair use of copyright. However, parodies are not subject to a blanket protection of fair use. They are neither explicitly allowed nor disallowed under the Copyright Act, and hence the consideration of the legality of each parody would be subject to scrutiny and depend on the facts and circumstances of each case. In the Blackwood Case[vii], the Court stated that in order to use the defence of fair use, a parodist has to satisfy two conditions: (i) he must not intend to compete with the copyright holder, and (ii) he must not make improper use of the original.
Due to the absence of any predetermined scope or definition of a parody under the Indian Copyright Act, 1957, its interpretation is largely done by the courts. There is a very thin line between criticism or review of a work on one hand, and its imitation on the other which makes it important to lay down some guidelines to distinguish between fair dealing and infringement.
In Civic Chandran v. Amminu Amma[viii], a famous playwright Thoppil Bhasi wrote a drama in 1952 which gained widespread appreciation and was staged several times. In 1995, the defendant wrote a counter drama based on this play which was published in the Malayalam edition of India Today. It was alleged that the defendant had committed copyright infringement as he had incorporated several substantial portions of the work including a reproduction of the characters. The Court analyzed both the plays scene-by-scene and determined that the real intention of the counter-drama was not to misappropriate the existing play but to criticize its ideology and hence it was held that there was no prima facie case of infringement against the defendant. The Kerala High Court also laid down a 3-condition test, referred to as the Substantiality Test, to determine the legality of parodies as follows – i) determine the quantum and value of the matter taken in relation to the comments or criticism; ii) the purpose for which it is taken, and iii) the likelihood of competition between the two works.[ix] Therefore, as far as the Kerala High Court is concerned, a parody, so long as it copies from the original in order to criticize it, does not constitute improper use of the original and thus qualifies as fair dealing.
While passing the decision in the Civic Chandran case, the Kerala High Court seems to have relied heavily relied on the case of Hubbard v. Vosper[x] where Lord Denning quoted:
“You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, they may be unfair. Next you must consider the proportions. To take long extracts and attach short comments may be unfair. But short extracts and long comments may be fair.....”
The judiciary seems to understand that, by its nature, parodies demand some taking from the existing work unlike other forms of fair dealing, which is why the use of or replication of the original work in parodies is permitted to some extent. However, there have been cases where the courts have held a parody to infringe one’s copyright. In the case of Pepsi Co v Hindustan Coca-Cola Ltd[xi], which involved Coca-Cola's parody of Pepsi's Yeh Dil Maange More commercial, the Court agreed that the defendant’s commercial was a copy of the plaintiff’s commercial which constituted copyright infringement and banned the airing of the defendant’s commercial.
In some cases, such as Whiley Eastern Ltd v. Indian Institute of Management[xii], the court linked fair dealing under Section 52 with the freedom of speech and expression under Article 19(1)(a) of the Constitution of India and held that its inclusion in the Copyright Act is necessary so that research, private study, criticism, review, or reporting of current events could be done freely. Further, in the case of Shri Ashwani Dhir v The State of Bihar[xiii], the Patna High Court held that Article 19(1)(a) of the Constitution protected the rights of the producers of a TV series that parodied the chief minister of Bihar (at the time Lalu Prasad Yadav)[xiv] and that a restriction on the airing of such a series would be against the fundamental right of freedom of speech and expression.
As mentioned above, the term parody lacks a concrete definition or scope. This makes each case highly subjective and creates various pitfalls regarding the term's legal interpretation. However, in line with the object of the Copyright Act, parodies promote creativity and the growth of ideas. This makes it necessary for the courts to strike a balance between the rights of the author in his copyrighted material and the interests of the society at large including the fundamental freedom of speech and expression.
[i] Dr. Catherine Seville, The Space needed for Parody within Copyright Law: Reflections following Deckmyn, National Law School of India Review, http://docs.manupatra.in/newsline/articles/Upload/F207663F-05B8-49A5-89DC-36E4ABA636E7.pdf.
[ii] Ibid. [iii] Rich Stim, Copyright & Fair Use, Stanford Libraries, https://fairuse.stanford.edu/overview/fair-use/. [iv] Blackwood & Sons Ltd. v. A.N. Parasuraman, AIR 1959 Mad 410.
[v] Rahul Saha, Sryon Mukherjee, Not so funny now, is it? The serious issue of parody in Intellectual Property Law, https://www.nalsar.ac.in/IJIPL/Files/Archives/Volume%201/4.pdf.
[vi] Chaitali Wadhwa, Copyright Protection and its Relation to Parodies, http://ciprnuals.in/wp-content/uploads/2020/02/Copyright-Protection-and-Parodies-5-1.pdf.
[vii] Supra no 4.
[viii] Civic Chandran v. Ammini Amma, (1996) 1 KLJ 454.
[x] Hubbard v. Vosper, 1972 (1) All ER 1023.
[xi] Pepsi Co v Hindustan Coca-Cola Ltd, 2003 (27) PTC 305.
[xii] Whiley Eastern Ltd. and Ors. v. Indian Institute of Management, (1996) 61 DLT 281.
[xiii] Shri Ashwani Dhir v The State of Bihar, AIR 2005 Patna 101.
[xiv] Kunal Seth, Parody – fair dealing versus infringement, 28 Sep 2020, Lexology, https://www.lexology.com/commentary/intellectual-property/india/saikrishna-associates/parody-fair-dealing-versus-infringement.