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Parodies, Caricatures, Pastiches: What Is to Be Expected by Authors of Originals Works?

04.11.2016

Mariia Koval, attorney at Ilyashev & Partners Law Firm
Source: Censor.net

The President of Ukraine has endorsed the law allowing to use works of literature, art and music for creation (on their basis) of parodies, caricatures or pastiches without authors’ consent but with indication of their name and the source of borrowing. What are the consequences of introduction of such novelties?

Prior to introduction of the said amendments into the law “On copyright and related rights” the notion of “parody, caricature or pastiche” used to fall under the category of “derivative works”, i.e. works created through creative transformation of the underlying work and only with the author’s consent, i.e. after signing a corresponding agreement with the author. From now on the humoristic transformation of works is considered to be the “free use”.

Under the general rule validity of free use of works stipulated by Article 9 of Berne Convention for the Protection of Literary and Artistic Works and Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) must not contradict ordinary use of works and must not cause considerable harm to lawful interests of the owner of the rights. One may conclude that creation of parodies, caricatures or pastiches must nowise impede the authors of the underlying works to exercise their rights (use, permission and prohibition of use). In the process of creation of the mentioned objects it is necessary to indicate the names of the authors of the underlying works and the source from which the works were borrowed.

It is obvious that a parody, a caricature or a pastiche are created as a result of creative work which leads to creation of a new copyright item: new independent copyright item created on the basis of another independent copyright item of another person. This is why it will not be easy to fully understand the boundaries between comic or satirical nature of a work created, for example, as a parody or a caricature, and unlawful use of another person’s work (for example, in the form of alteration, plagiarism etc.). As for the pastiche the situation will be even more knotty as soon as in the process of creation of pastiche it will be difficult to define an obligatory condition of “absence of harm to protection of lawfully released works”.

In addition parodies or caricatures must be of comic and satirical nature. Based on the definitions given by the General purpose dictionary, which defines the word “comical” as something funny and amusing which causes laughter and the word “satirical” as something which ridicules somebody’s flaws, disadvantages, negative events, it may be concluded that in certain cases it will be required to prove that somebody’s work created as parody or caricature is not a copy of another person’s work, and really provokes laughter and ridicules flaws.

The author of the underlying work, on the basis of which a parody of caricature is created, by no means can influence the level of their “comicality” and, consequently, may find himself in an unfavorable situation.

The role of courts

It will be the courts’ responsibility to handle the matters of legitimacy of use of other persons’ works in the process of creation of caricatures, parodies and pastiches in each particular case, as well as the matters of other cases of free use of works.

The court practice has a wide number of cases when the owners of the exclusive rights challenged free use of their works by other persons.

In the case No. 910/11320/13 the Claimant insisted on unlawful nature of use of his works by the Respondent and claimed settlement of compensation for violation of his exclusive author’s rights. However, by its decision as of May 26, 2015 (kept in force by Kyiv Economic Court of Appeal and by the Highest Economic Court) Economic Court of Kyiv dismissed the stated claims substantiating its decision by the fact that the Respondent had used the Claimant’s works in the form of citations (short extracts) from the published works in the volume justified by the goal and with indication of the authors’ names and of the source in the program’s subtitles which, pursuant to Article 21 of the law of Ukraine “On copyright and related rights” does not require consent of the author or of another person who holds the copyright.

As for the reproduction with the aim of covering current news by means of photography in the case No. 22-5637 (6-21540св12) the Claimant filed a claim related to protection of his copyright referring to violation by the Respondent of the copyright to a photographic work authored by the Claimant. Although the courts of the first and of the second instance had sustained the claim, the judicial panel of the court chamber in civil matters of the Highest specialized court of Ukraine on consideration of civil and criminal cases by its decision as of July 11, 2012 dismissed the decision and ruling of the both courts and disallowed the claim. The Highest specialized court came to conclusion that the Respondent had used the Claimant’s work to the extent which is permitted by the Law in relation to the free use without the author’s consent.

International experience

In 1994 the US Supreme Court in the case Campbell v. Acuff-Rose Music, 510 U.S. 569 related to a parody to a popular song “Oh, Pretty Woman” specified that factors of “fair use” of other person’s work must be applied in each particular situation in each particular case. In the aforementioned case the Supreme Court also came to conclusion that a commercial parody may be qualified as a “fair use” of an artistic work as soon as a parody rarely replaces an original work performing “a different market function”. More than that the Supreme Court defined that the parody which is aimed at criticism, provision of comments and release of news does not constitute violation of copyright.

In the Russian Federation the special status of parodies and caricatures was formalized in 2008 by Article 1274 of the Civil Code of the Russian Federation according to which creation of an artistic work in the genre of literature, music or another parody or in the genre of caricature on the basis of another original artistic work is allowed without consent of the author or another holder of the exclusive right and without settlement of compensation to him.

The European Union also legislatively regulates the notions of “parody”, “caricature” and “pastiche” in its Directive ЕС 2001/29/EC “On the harmonization of certain aspects of copyright and related rights in the information society”. Pursuant to Article 5(3) of this Directive use of the originals of the authors’ work for the purpose of caricature, parody or pastiche limits the rights of the holders of copyright, i.e. does not require their consent and settlement of remuneration to them. However the Directive contains a caution according to which such limitation is allowed in certain special cases not conflicting with normal use of artistic work and not violating the rights of holders of such exclusive rights.

 
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