Copyright is a form of intellectual property.[1] Copyright law offers multiple advantages that support in protecting the rights of original creators while also allowing room for creative expression and commentary through the usage.
The Fair Use Doctrine permits the legal copying of a copyrighted work, and it is prescribed under Section 52 of The Copyright Act, 1957[2]. This Doctrine provides an exception against the protections of copyright when the copying of the work is done with the intent and goal of studying, reviewing or even criticising it. As an extension of the same, parody or satire of a copyrighted work is deemed to be covered under this exception. However, from a practical perspective, parody operates in a legal indeterminate area.
Parody and satire are terms used interchangeably, but the two are not identical or equivalent. Although Parody and Satire are both tools of humour that are often used to criticise, review or even merely poke fun at something. However, it is important to note that these two must be necessarily differentiated in order to determine the legality of the same in the context of intellectual property infringement.
While both parody and satire use humor as a tool to effectuate a message, again, the purpose of a parody is to comment on or criticize the work that is the subject of the parody. By definition, a parody is a comedic commentary about a work that requires an imitation of the work. Satire, on the other hand, even when it uses a creative work as the vehicle for the message, offers commentary and criticism about the world, not that specific creative work. Therefore, parodies use copyrighted works for purposes that fair use was designed to protect in the first place.[3] While the difference between parody and satire has been exclaimed on numerous circumstances, the judicial bodies however, tend to club these two terms as the same while passing out their ratio decidendi.
The value of a brand parody
Courts and observers appear to agree that parody has societal significance as critical speech, irrespective to think a particular parody deserves legal protection.
As the Supreme Court has stated, “Like less ostensibly humorous forms of criticism, parody can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” [4]
Although courts generally acknowledge parody, they are noticeably less appreciative of parodies that act as brands.
The First Amendment5 and jurisprudence governing trademark, both grant non-commercial communication a distinct standing. However, the issue with brand parodies goes past doctrine; courts appear to disagree on whether a defendant’s commercial goals conflict with the free speech interest in the parody.
However, there is a compelling argument that, at least in the context of trademarks, the inclusion of parody in a brand achieves expressive purposes that are not at all possible through regular, non-branding speech. Most branding parodies, if not all of them, carry a double-intended message. They are not just making fun of the targeted brand when they use its name.
Beyond just doing a parody for some trademark, brand parodies also capture the branding mechanism and use it to provoke the critical thought about the atmosphere of brands in our society.
Therefore, brand parody that are genuine in nature have societal value and are not likely to lead to confusion or a loss of the uniqueness of the target mark; as a result, trademark courts should rarely forbid them. however, disputes over brand parodies can go on for years as courts disagree on how and when the law should apply in that circumstance.
Because of the commercial nature of these parodies or because of the impression of exploitation and clout riding that has been created, there may be ambiguity and incorrect application of the law.
Circumstances when parody cannot be used as a defence
While parody may be protected under the fair use doctrine in some cases, it is not an absolute defence, and each situation should be evaluated on the basis of the case and legal jurisdiction in order to determine its validity. Even while there is no existence of an absolute defence for parody, common sense and rationality suggests that it may be difficult to prove what does and does not amount to a ‘successful parody’, which could be where the idea of humour is directly communicated to the target audience. Hence, proving infringement against a strongly- alleged claim of parody is likely to be very challenging. There are instances where parody is not subject to blanket protection under the doctrine of fair use provided by the statute.
In the case of Leibovitz v. Paramount Pictures Corporation[5], an acclaimed photographer by the name Leibovitz had taken a picture of actress Demi Moore during her pregnancy during a professional photoshoot. She was seen to be making passionate facial expressions in the picture. Certain aspects of the picture stood out, such as the way the subject was positioned and posed, the kind of lightning, etc. that gave a distinct feel for the same. The controversy now, which led to the case, stemmed from the fact that Paramount Pictures released a picture of actress Leslie Nielsen shortly after the Leibovitz photo, suggesting ideas that were similar to those in Demi Moore’s image.
The stance taken by the court made the concerned parties realize that anything under the sun does not become a parody simply because it involves a trace of humor. If it is discovered that the defendant has tried to take advantage of a reputed work only to make commercial gains by simply involving some humor in the work, then such a work can be denied the defence of parody.
Similarly, in the famous Superman Logo case of 2015[6], in the United States of America, The defendant was an apparel line that featured the well-established and recognisable Superman shield design on its items. The word “Dad” was shaped like a superman emblem on the T-shirts. The defendant said that there was little chance that customers would confuse their SuperDad T-Shirts for the iconic Superman insignia because they were a blatant and obvious mimic of it.
The defendants of this particular dispute had the contentions that the word ‘dad’ relates to the acknowledgment of the real-life hero which a father is to their children and the undue self-importance that is given. While this was a creative argument stirred up by the Counsel for defendants, it was not enough for convincing the honourable court. The court dismissed the contentions laid down by the defendants and held that although the defendant’s use of the word ‘Dad’ was with the intent of humour, the purpose is only to promote their t-shirts using the famous logo of the plaintiff, and this certainly cannot be protected as a parody under the law.
Conclusion
In conclusion, the Fair Use Doctrine and copyright laws offer an essential balance between defending the rights of the original creators and permitting parody as a form of creative expression and commentary. Parodies can be regarded as a tool for critical discourse since they provide new light on past works and generate new points of view when the intention is present. However, the legal landscape for brand parodies is complex, as courts grapple with the intersection of commercial interests and free speech rights. While genuine brand parodies have societal value, disputes can be prolonged and contentious. Parody is not an absolute defense, and its validity depends on the specific circumstances and legal jurisdiction for which the dispute can be handled in the interests of justice, equity and good conscious
Author: Ayushman Kumar B.
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