Copyright, Moral Rights and Parody

Michael Travis BA/LLB (Hons) "The tribute that mediocrity pays to genius." - Oscar Wilde COPYRIGHT 1. Definition 1.1 "Copyright" is a property right that exists in original works, be they: (a) literary, dramatic, musical, or artistic works; (b) sound recordings; (c) films; (d) broadcasts; (e) cable programmes; or (f) typographical arrangements of published editions. 1.2 A work may be original if it is produced independently from the expenditure of skill, labour and knowledge. 1.3 A work is not original if it is a copy of another work, or infringes the copyright in another work. 2. Infringement 2.1 A person infringes copyright in a work if they do any restricted act without licence. 2.2 Restricted acts which constitute primary infringement include: (a) copying; (b) issuing copies to the public; (c) performing, playing, or showing in public; (d) broadcasting, or including in a cable programme; and (e) adapting. 2.3 Restricted acts which constitute secondary infringement include: (a) importing a copy; (b) possessing, or dealing with a copy; (c) providing means for making copies; (d) permitting use of premises for infringing performance; and (e) provision of apparatus for infringing performance. 2.4 An infringement of copyright is actionable by the copyright owner (usually the author ), and relief may take the form of damages, injunctions, accounts or other relevant remedies. 2.5 For secondary infringement, the plaintiff has the onus of proving actual (not constructive) knowledge. 3. Copying 3.1 "Copying" means: (a) reproducing or recording a work in any material form; (b) storing a literary, dramatic, musical, or artistic work in any medium by any means; (c) making a dimensional copy of an artistic work presented in different dimensions; and (d) photographing the whole or any substantial part of any image forming part of a film, broadcast, or cable programme. 3.2 In determining whether a work is a copy, the court examines: (a) substantiality; (b) causal connections; and (c) objective similarity. 4. Substantiality 4.1 Restricted acts against an original apply "in relation to the work as a whole or any substantial part of it". Substantiality refers to quality, not quantity, so exact reproduction is not necessary. 4.2 In considering what is substantial, regard must be had to the purpose for which the copyright material has been taken. 5. Causal connection 5.1 Causal connection examines whether any similarities are due to mere chance, common source or subconscious copying. Otherwise it is a question of who copied whom. The onus is on the plaintiff to show derivation and negate issues such as common source. 6. Objective similarity 6.1 Objective similarity alone is insufficient. There is a need to show "such a degree of complexity in the similarities" that the work could not have been made independently. 6.2 For literary works the court will look at the "combination of situations, events and scenes" while special care and attention will be required for artistic works. MORAL RIGHTS 7. Definition 7.1 The Copyright Act 1994 also protects the moral rights of the author, such as: (a) the right to be identified as the author or director (called the right of attribution); (b) the right to object to derogatory treatment of the work (called the right of integrity); and (c) the right against false attribution of identity of author or director. 7.2 Some of these rights can be protected by other causes of action (eg contract or tort), especially in jurisdictions where moral rights are not recognised (such as America). Afterall, a decision "clothed in terms of proprietary right in one's creations … also properly vindicate[s] the author's personal right to prevent the presentation of his work to the public in a distorted form". 8. Derogatory treatment 8.1 Derogatory treatment is defined as that which: (a) distorts or mutilates the work; and (b) is prejudicial to the honour or reputation of the author or director. 8.2 This can include making a work appear "ridiculous", but does not necessarily apply to taking extracts from a work and placing them in a "different context". Determining whether there is distortion requires an objective assessment. 8.3 In order for a work to have a defence under the qualifications and exceptions listed in the Act, there must be a "clear and reasonably prominent indication … that the work has been subjected to treatment to which the author has not consented". This must appear with, and at the time that the author is identified. PARODY 9. Definition 9.1 Parody can be defined as "literary or artistic work that imitates the characteristic style of an author or a work" for a certain purpose (usually comic effect or ridicule). However, it has also been described by theorists as "imitation characterised by ironic inversion" or inter-art discourse intersecting "creation and re-creation … invention and critique". 10. Infringement 10.1 In any event, parody relies on a close association with an original work. Arguably, a work of parody is made better the more the original work is recalled. Because of this necessary objective and substantial similarity, a work of parody may be considered a "copy" for the purposes of the Copyright Act 1994. 10.2 Also, depending on how the work is presented, a parody might offend the original author's moral right of integrity under the Copyright Act 1994. NON-INFRINGEMENT 11. Failure 11.1 A person does not infringe copyright in an original work where: (a) the plaintiff has not established that there is an original work; (b) the original work is not subject to copyright (such as ideas, facts or works excluded by statute ); (c) the plaintiff has not established that they own copyright in the original work; (d) the duration of copyright has expired; or (e) in the case of secondary infringement, the plaintiff has not established actual knowledge. 12. Exceptions 12.1 A person does not infringe copyright in an original work where: (a) the copyright has been transferred to them (by assignment, testamentary disposition or operation of law); (b) they have a licence pursuant to Part V of the Copyright Act 1994; (c) their work is a permitted act under the Copyright Act 1994; (d) their work is in the public interest; (e) their work is for private or domestic use; (f) their work is not a "copy"; or (g) there is some other defence. 12.2 A person does not infringe moral rights in a work where the rights holder has consented or given waiver. PERMITTED ACTS 13. Copyright Act 1994 13.1 The Act permits: (a) incidental copying; (b) fair dealing with a work for the purposes of criticism or review, where accompanied by a sufficient acknowledgment; (c) fair dealing with a work for the purposes of reporting current events; (d) fair dealing with a work for the purposes of research or private study; (e) copying for educational purposes; and (f) copying certain artistic works on public display (buildings, and works that are permanently situated in a public place or in premises open to the public). 14. Incidental copying 14.1 Incidental copying, while not defined in the Act, means "casual, not essential, subordinate" or "merely background." 15. Fair dealing 15.1 According to New Zealand authority, fair dealing "is simply a reasonable use" and "must be judged by looking at the nature of the works … and the purpose" for which they are used. 15.2 This is a "question of degree" and must involve consideration of: (a) "the number and extent of … extracts", that they are not "altogether too many and too long"; (b) "the use made of them", that they are not "used to convey the same information as the author, for a rival purpose"; and (c) their proportions. 16. Criticism and review 16.1 Fair dealing for criticism and review has its ordinary meaning. Thus, one can attack both "the literary style" and "the doctrine or philosophy" of a work. 16.2 Fair dealing for criticism and review must be accompanied by sufficient acknowledgment identifying: (a) the work by its title or other description; and (b) the author of the work. 16.3 This requirement is satisfied by any "wording or other indication which would convey to a reasonably alert member of the relevant audience that the identified person is the author". 16.4 Acknowledgment is not required where the work is published anonymously or, if unpublished, it is not possible by reasonable inquiry to ascertain the identity of the author. ORIGINALITY 17. Substantiality 17.1 Any substantial similarity between a derivative work and an original work will normally amount to a breach of copyright. However, "a mere evoking or conjuring up of recollection" is not infringement. 17.2 In considering what is substantial "regard must be had to the purpose for which the copyright material has been taken". 17.3 Consequently, a defendant will need to show that: (a) no "substantial part" of the original work is reproduced; (b) use of the original work is "confined to some comparatively insignificant part of it"; or (c) originality. 18. Originality 18.1 Even though a work is derived from another work, the author may have "bestowed such mental labour upon what he has taken and … subjected it to such revision and alteration as to produce an original result". 18.2 In New Zealand, originality derives from the "independent labour and skill" of the artist. This may be evidenced by: (a) "very fine work involving a high degree of concentration, skill and care"; (b) work "of great delicacy and intense application"; (c) "remarkable" work; or (d) work of a "high standard". FREEDOM OF SPEECH 19. New Zealand Bill of Rights Act 1990 19.1 New Zealand's commitment to the International Covenant on Civil and Political Rights is affirmed by the New Zealand Bill of Rights Act 1990. 19.2 Amongst other things, this Act guarantees: (a) the "right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference"; and (b) the "right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form". 19.3 Significantly, other enactments are to be given "a meaning that is consistent with the rights and freedoms contained in [the] Bill of Rights" and "that meaning shall be preferred to any other meaning". 19.4 Although there have been no intellectual property cases in which a defence based on the Bill of Rights has been pleaded, some kind of freedom of speech defence may now be available in New Zealand. 19.5 However, the "right to freedom of expression is subject to the rights of others". Thus freedom of expression will not excuse a parodist from liability for passing off, or trademark infringement. POLICY 20. A distinctive genre 20.1 Because of the legal confusion surrounding parody, some commentators argue that it should be subject to exceptional treatment. For example, parody might be given specific protection as a genre, such as exists in: (a) Spain; (b) France; and (c) Belgium. 20.2 However, while a specific parody exception "offers the courts the chance to develop definitions of parody that reflect changes in literary and artistic theory and practice", one must note that in reality, and "[w]ithin the copyright context … definitions of parody are [usually] restricted to its more obvious and conventional manifestations". 21. Market failure 21.1 Theorists argue that the market for copyright goods lacks competitive conditions because such works are "public goods" and cannot exclude a non-purchasing audience. Consequently, works "will be under-produced if left to the private market". 21.2 Copyright law is therefore a response to market failure, within which parody becomes a secondary market failure. 21.3 However, this only applies where "the primary goal of the … intellectual property regime is to foster the creation and dissemination" of texts, which is not the case for the law of moral rights, trade marks and passing off. 22. Transformative use 22.1 As per the discussion of originality, a parody might be considered a creative work in its own right, regardless of its necessary dependence on an original work. In economic terms this is defined as "a use which does not constitute a market substitution" for the original. 22.2 This reasoning has been followed in jurisdictions such as: (a) the United States; (b) Germany; and (c) Italy. MORAL VERSUS ECONOMIC RIGHTS 23. The commercial approach 23.1 Parody targets the "author's personality manifested in his or her creation" and is not "an attack on his or her ability … to profit from, or exploit commercially, the copyright". Consequently, the standard economic approach "to an essentially moral dilemma has not only engendered inconsistency and confusion" but is "wrong in principle and inimical to both democratic values and artistic creativity". 23.2 Instead we might advocate a moral rights approach, which, "rather than stifling artistic endeavours, would only restrain parodies which harm the honour and reputation of the original author; otherwise parodists would be given free reign to make the best parodies possible". 24. Reduced demand 24.1 The economic rights approach asks whether a parody has reduced demand for the original. In practice, this means reduction in demand must result from the partial satisfaction of that demand by the secondary work - and so does not apply where the reduction in demand is due solely to the chilling effect of criticism. 24.2 As such, a better formulation of the test is whether a parody has 'replaced' demand for the original. In other words, "[b]iting criticism suppresses demand; copyright infringement usurps it". 24.3 However, this test is not economically sound as: (a) "a parody will rarely compete in the same market as the original work" (afterall, a parody is usually a humorous interpretation of a serious work); and (b) "the secondary work will often increase demand for the primary work by its additional treatment and exposure". 24.4 Furthermore, this test denies: (a) "the legitimate interests of true parodists on the ostensible ground of protecting authors of original works"; and (b) "the author's legitimate moral claims to integrity, honour and reputation where these are imperilled by reckless parodies that can be shown to enhance the market value of the original". 25. Commercial purposes 25.1 A variation on the economic rights approach asks whether a parody is of a commercial or non-profit nature. This assumes that "to be protected a parody must have only artistic and not economic value". But this is an incorrect premise. Where parodies perform their "critical or humorous design effectively", they will "attract commercial value because of, and in addition to, their artistic worth". 25.2 The better test is to first determine whether a parody has critical or social value. If so, "whether it has economic value or not, the wider purpose it serves in promoting creative endeavour and protecting democratic values should be presumed to outweigh the copyright owner's proprietary concerns." 25.3 Otherwise, work created "solely for commercial gain" with no critical function "deserves no special treatment". UNITED STATES 26. Fair use 26.1 "Fair use" involves assessment of: (a) the purpose or character of the use (including whether or not it is commercial); (b) the nature of the copyright work; (c) the amount and substantiality of the portion used; and (d) the effect on the potential market for, or value of, the copyright work. 26.2 This is underpinned by the concept of "transformative" or "productive" use, where an artist builds creatively on, rather than simply appropriates, existing works. 26.3 The types of fair use envisaged by US law include criticism, research and scholarship. As with New Zealand, parody will be sidelined as criticism which has been cast in parody form. Consequently, even if the parody ridicules the original work, it will not be excused unless it can also be considered a "comment or criticism". 26.4 However, the US courts exhibit a particular leniency towards parody. While not fair use per se, they recognise that (a) the commercial character of a parody is not itself decisive and may be outweighed by its "transformative" value; (b) to ensure audience recognition a parody may use more of the original than is normally acceptable for fair use; (c) questions of good or bad taste are irrelevant; and (d) there is not always a protectable derivative market for parody. RELATED ISSUES 27. Trademark parody 27.1 The primary purpose of normal parody is the creation of new art, with criticism or commercial gain as secondary objectives. But because trademarks "differ from works of creative art in that their raison d'etre is the identification of goods or services," the trademark parodist cannot "escape from the inherently commercial nature of his brief and its associated legal and commercial constraints. Relatively few trade mark parodists are motivated solely by the desire to satirise or comment on a brand image". 27.2 In any event, the parody of trademarks is further complicated in New Zealand by the existence of a registration system which confers special protection. 28. Passing off 28.1 An action in passing off is concerned with a particular type of misrepresentation involving the use of an indicium that suggests a (non-existent) commercial connection between the applicant and the goods or services of the respondent. The misrepresentation may be either express or implied. 28.2 Such a misrepresentation may take the form of a parody, in which case the courts will distinguish between a: (a) "mere" parody; and (b) a parody which is "embedded" in a commercial dealing (such as an advertisement). 28.3 A "mere" parody is "innocent because viewers would receive the impression" that the author of the original material "would not have agreed" to their work being parodied; whereas an "embedded" parody implies endorsement. 28.4 Confusion is the key, as a "parody which occasions only a momentary and inconsequential deception is both successful and permissible; but a parody which occasions an enduring deception is neither". Afterall, if "the defendant employs a successful parody, the customer would not be confused, but amused". ENDNOTES s 14(1) Copyright Act 1994 ("CA"). See 17: Originality. s 14(2) CA. s 29 CA. s 30 CA. s 31 CA. s 32 CA. s 33 CA. s 34 CA. s 35 CA. s 36 CA. s 37 CA. s 38 CA. Ibid. s 21 CA. s 120 CA. IBM v Computer Imports Ltd [1989] 2 NZLR 395. Taiwanese IBM clones. Wham-O MFG Co v Lincoln Industries Ltd [1984] 1 NZLR 641. Preliminary Frisbee designs. s 29(2)(a) CA. Hawkes & Son (London) Ltd v Paramount Film Service [1934] Ch 593. A film in which a band plays some recognisable music, albeit in the background. Francis Day & Hunter Ltd v Bron [1963] Ch 587. The artist coincidentally composed a piece of music very similar to the original. Joy Music Ltd v Sunday Pictorial Newspapers (1920) Ltd [1960] 2 QB 60. Printed lyrics in parody of the song "Rock-A-Billy". British Northrop v Texteam Blackburn Ltd [1974] RPC 54. Both parties produced a list of spare parts which they manufactured, whose contents were the same. Plix Products Ltd v Frank M Winstone (Merchants) Ltd (1984) 3 IPR 390 (HC), and [1985] 1 NZLR 376 (CA). Kiwifruit containers indirectly copied. Zeccola v Universal City Studios Inc (1982) 46 ALR 189. "Jaws" concept not protected, but combination of story details are. Ibid. s 94 CA. Not required for incidental copying or news reporting, per s 97 CA. s 98 CA. ss 102 - 104 CA. Gilliam v American Broadcasting Corporation 538 F2nd 14. ABC re-edited Monty Python shows, butchering them in the process. s 98 CA. Snow v The Eaton Centre Ltd (1982) 70 CPR 2d 105. Christmas ribbons tied onto artist's sculpture. Morrison Leahy Music Ltd v Lightbond Ltd [1993] EMLR 144. George Michael medley. Shostakovich v Twentieth Century Fox Film Corp 80 NYS 2d 575. Anti-Soviet film using public domain music by a Soviet composer. s 99 CA. ss 100 and 101 CA. The American Heritage Dictionary of the English Language, Fourth Edition. L. Hutcheon, "A Theory of Parody: The Teachings of Twentieth-Century Art Forms" (1985), page 6. What you say? Ibid, page 2. See 8: Derogatory treatment. s 27 CA. ss 22 - 25 CA. s 113 CA. See PERMITTED ACTS. s 225(3) CA, nothing in the Act "affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise". See also Hubbard v Vosper [1972] 1 All ER 1023, at 1027. Ex-Scientologist publishes book criticising extracts from Hubbard's work. See CA, variously. See ORIGINALITY. s 107(1) CA. May be given in writing, s 107(2) CA. s 41 CA. s 42(1) CA. ss 42(2) and (3) CA. s 43 CA. ss 44 and 45 CA. ss 73 CA. Hawkes & Son (London) Ltd v Paramount Film Service [1934] Ch 593. Television New Zealand Ltd v Newsmonitor Services Ltd [1994] 2 NZLR 91, at 107. Hubbard, at 1027. Ibid. Ibid, at 1028. Pro sieben Media AG v Carlton UK Television Ltd [1997] EMLR 509. Use of footage from an exclusive interview to criticise interview tactics. s 2 CA. Schweppes v Wellingtons [1984] F.S.R. 210. Parody of Schweppes bottle, called Schlurppes. See also 4: Substantiality. AGL Sydney Ltd v Shortland City Council (1989) 17 IPR 99. Advertisement takes off other advertisement. Joy Music, per Hanfstaengl. Williamson Music v Pearson [1987] F.S.R. 97. Advertising parody of a Rodgers and Hammerstein song. Hanfstaengl v Empire Palace [1894] 3 Ch 109. Per Glyn, upheld in Joy Music. See also 22: Transformative use. Martin v Polyplas Manufacturers Limited [1969] NZLR 1046. This involved the artist making a three dimensional copy from an original engraving. Ibid. s 13, New Zealand Bill of Rights Act 1990 ("NZBOR"). s 14, NZBOR. s 6, NZBOR. Clark v Associated Newspapers [1998] 1 All ER 959. Newspaper publishes article parodying politician's diary. Ibid. Nike Inc v 'Just Did It' Enterprises (1993) 6 F 3d 1225. Real decreto legislativo, 12 abril 1996, Num. 1/1996, Propriedad Intelectual Art. 39. Loi de juillet 1992 relative au code de la propriété intellectuelle Article 112-5, n.4º. Loi de 30 juin 1994 relative au driot d'auteur et aux driots voisins, Art. 22, n.6º. These jurisdictions justify protection as preserving a forum for public discussion of a work, to which the author is taken to have consented on publication. Gredley and Maniatis, "Parody: A Fatal Attraction?" [1997] 7 EIPR 339, at 344. Gordon, "Fair Use as Market Failure: a Structural and Economic Analysis of the Betamax Case and its Predecessors" (1982) 82 Col. L.Rev. 1600, at page 1611. Michael Spence, "Intellectual Property and the Problem of Parody" (1998) Law Quarterly Review 114 (Oct) 594, at page 604. See ORIGINALITY. Supra 82. ("fair use") s 107 Copyright Act 1976. ("freie Benutzung") s 24 Urheberrechtsgesetz. ("autonoma identità") Article 1, Legge 22 aprile 1941, n.633. M. Weir, "Making Sense of Copyright Law Relating to Parody: A Moral Rights Perspective" 1992 Monash University Law Review 18(2) 194, at 196. Ibid, at 194. Ibid, at 196. Hill v Whalen and Martell 220 F 359. "Mutt and Jeff" versus "Nutt and Giff". Fisher v Dees 794 F 2d 432, at 438. Supra 88, at 198. Ibid. Ibid. Ibid. Ibid, at 200. Ibid, at 201. Ibid. Also, Hogan v Pacific Dunlop Ltd (1988) 12 IPR 225. Shoe-makers parody knife scene from "Crocodile Dundee" solely to promote sale of shoes, however much their employees "believed they were embarked upon a pursuit of the visual and dramatic arts". American Geophysical Union v Texaco 802 F.Supp.1 (S.D.N.Y. 1992). Rogers v Koons 960 F.2d 301 (2d Cir.1992). Well known photograph doctored for comic effect. Note: the defendant's "profit-making motives" were also fatal to his case. Campbell v Acuff-Rose 114 S.Ct 1164 (1994). Supra 80, at 341. Ibid, at 412. Ibid. For example, Schweppes. Hogan v Pacific Dunlop Ltd. Pacific Dunlop Ltd v Hogan (1989) 14 IPR 398. Appeal. The parody is described as a "caricature". Ibid. Supra 74. Supra 76.