A series of updates to UK copyright law are scheduled to go into effect tomorrow, finally allowing for the use of copyrighted material in the creation of parody, the BBC reported. The country’s copyright law does not currently include a fair use (“fair dealing,” in British parlance) exception for satire, an omission that’s left many artists, musicians, and others vulnerable to legal action.
One of those artists is Miriam Elia, who, upon release of her parody children’s book We Go to the Gallery earlier this year, faced a slew of legal threats from Penguin UK, the publisher of the original book series on which Elia modeled her work. Elia says Penguin finally backed off after she stopped replying to the company’s “endless threatening letters.”
In theory, her work should be protected by the new law, which states specifically that “fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.” Asked about the exception, Elia told Hyperallergic, “I would say the law change is a great leap forward for the art of satire.”
But, as she and others have also pointed out, the update is far from comprehensive. There’s no change, for instance, to the status of “moral rights,” under which a copyright holder can object to “derogatory treatment of the work.” This provides plenty of ground for lawsuits, whose outcomes will be determined by judges ruling on whether the works in question meet the legal standard of a parody. The International Business Times (IBT) explains:
Judges presiding over parody court cases will have to refer to a ruling by the European Court of Justice (ECJ), which on Sept. 4 defined parody for the first time. Under that definition, a parody has to “constitute an expression of humor or mockery.”
Ciara Cullen, a senior associate at the London law firm RPC, said that subjective definition will leave much to the individual tastes of U.K. judges.
Elia echoed these concerns in her email to Hyperallergic: “Will the judge laugh at the work? What if the jury find the work funny, but the judge doesn’t? Will we need specialist comedy courts for future infringement cases?” (Maybe not such a bad idea.)
Speaking to IBT, one half of the English music and comedy duo Cassetteboy noted as well that although parody will be allowed under the new law, mashups still won’t be (unless they’re funny). US law, on the other hand, identifies fair use based on four tenets including “the purpose and character of the use,” which is commonly understood to be the extent of the transformation from the original.