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“The team was recently visible advising on a number of pharmaceutical cases. Sources agree that the team is “moving in the right direction” and are particularly impressed by its work in the pharmaceutical sector”.

 

Some Issues of Commercial Use of Parodies in Copyright Law

11.11.2016

Mariia Koval, attorney at Ilyashev & Partners Law Firm
Source: Ukrainian News

Mariia Koval believes that permitting the creation of parodies, caricatures and pastiches in law can cause a wave of “new” works they want to make money off.

Amendments to the Law of Ukraine “On Copyright and Related Rights” (hereinafter, the “Law”) permitting the creation of parodies, caricatures and pastiches on the basis of lawfully published literary, artistic, musical and other works entered into force on October 27, 2016.

Whereas the lawmaker did not expressly envisage whether parodies, caricatures and pastiches as the free use of works can be created on a commercial or non-commercial basis, the question arises: can the person who has created a parody on the basis of someone else’s work make money from it?

In accordance with para. 5, Art. 15 of the Law, the author (or other person who owns the copyright) has the right to demand payment of the remuneration for any use of the work except in cases stipulated by Articles 21-25 of the said Law. Whereas the use of the original work for creation of parodies, caricatures and pastiches is enshrined in Art. 21, we conclude that for the creation of the said objects payment of remuneration to the author of the original work is also not envisaged.

The person, who created the parody on the basis of the original work, can make money from it: the EU Directive 2001/29/EC “On the harmonization of certain aspects of copyright in the information society” states that the use of the original work for the purpose of caricature, parody or pastiches does not require consent of the owners of exclusive rights and payment of remuneration to them.

There are no restrictions on the profits derived from use of the parodies created on the basis of the original, previously lawfully published work.

It should be remembered that creation of parodies and, accordingly, gaining profit for their use may be exercised only if they do not cause damage to use of the original work and do not unreasonably restrict the author’s legitimate interests – the so-called principle of “fair use”. The amount of the profit gained from use of parody may be of importance only if the author of the original work proves in court that the work created is not a parody, or that the created parody harms his honor and dignity.

The authors of the original works often consider that parodies being allegedly insulting, degrading, etc., may be harmful to their dignity, honor and reputation and, thus, cause them non-pecuniary damage. In such cases it is necessary to go to court to demand payment of non-pecuniary damage. The courts, in turn, may interpret in their own way whether the parody was really insulting, humiliating, or had other negative effect. In each particular case, the court will find whether the particular work is really a parody of the original work, or else is plagiarism.

In accordance with the explanations in para. 9 of the Resolution of the Plenum of the Supreme Court of Ukraine of March 31, 1995, No. 4 “On court practice in cases on compensation of non-pecuniary (non-property) damage”, the court determines the amount of compensation for non-pecuniary damage within damages sought depending on the nature and volume of moral and physical suffering caused to the plaintiff to the extent of the defendant’s guilt and other circumstances of each particular case.

Therefore, if the court finds that the parody caused non-pecuniary damage to the author of the original work, the author can receive the appropriate compensation, the amount of which is also determined by the court based on the circumstances of the case.

However, it should be remembered that the nature of the parody itself is laid down in its definition, i.e. whether it is a knowingly comic or satirical work, or a work aimed at ridiculing certain events or persons. Therefore, it is obvious that parody may contain elements of criticism.

 
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