Abstract

Copyright, the most important aspect of intellectual property, is the exclusive right of the author on his writing, performance or creative work. The stringent application of this law will stifle creativity and freedom of speech in the society. This article tries to analyze the conflict between copyright and free speech and the legal treatment of parody which involves taking of a substance from the original work. If the object of the parody cannot be recognized it fails because of which it has become debatable. The courts have found themselves in an uncomfortable position balancing these two rights. The paper examines the extent to which copyright restrains freedom of speech. It argues that parody is not and should not be actionable under copyright law. For this purpose, the tests laid down by the statutes and the Courts to check copyright infringement and the defenses available for parody have been explored. In this backdrop, the paper has reviewed various cases which highlight the Court’s approach towards parody in India as well as in the US. Further, it argues that parody does not infringe the right to publicity of public figures whom it ridicules by discussing few case laws. It also proposes a few suggestions such as introducing defenses of freedom of speech and public interest to ensure more protection of parody. Finally the fact that copyright and freedom of speech have the same aim and hence they co-exist has been highlighted by focusing on various provisions in the Copyright Law itself that try to balance these two rights thus concluding that Copyright Law is not an obstruction to free speech.

Introduction

Copyrights are the rights of the creator of artistic, music or literary works in order to ensure his best interest and protect his work from piracy. It protects the expression of the idea and not the idea itself. Copyrights promote creativity by securing what has already been created and there by curbing repetition and piracy. However, creative work has become boundaryless. Thus Intellectual Property rights and Human rights clash at this point where copyright creates a fetter on what others are able to speak, write, use, display or create. This paper tries to reconcile these two aspects.

Parody is an example of a work that is stuck in this conflict between copyright and free speech. Parody tries to comment or criticize over the work of somebody else. It has an essential characteristic of borrowing work. There is no set boundary or format of parody and it has thus become a debatable issue. But many countries have protected parody as a form of creative expression.

Freedom of speech and expression is guaranteed by Article 19 of the Indian Constitution. The Copyright Law is an extension of this freedom, which means that if an individual has freedom of speech, that person will get to protect his intellectual work as property and also ensure that he cannot be deprived of his property without any law.

History of Copyright

History of copyright commences from the time of Guttenberg’s printing press. The number of printed books exploded in Britain thus requiring a need to protect the rights of both the publishers and the writers. [1] Printing rights were regulated by the crown by granting royal privilege, parliamentary privilege and stationer’s copyright. [2]

The first statute created for protecting the creator’s rights was the Statute of Anne, 1710. It granted legal protection to the creator’s work for 14 years. Statute of Anne gave recognition to the author as foundation head of protection. Copyright protection slowly expanded to other works as well, like performing rights, Sculpture copyright, musical and dramatic copyright.[3]

Today at the international level treaties and conventions are made for protection of creators. One of the most prominent treaties that laid the foundation of copyright is the Berne Convention of 1886.

Parody

The origin of the word ‘parody’ can be traced back to the old Greek times when parody was called paroidia – a compound of two words “para” (beside) and “ode”(song).[4] In the earlier times parody had a very narrow scope and it was limited to only parodising poems. However in today’s world, parodies have generated a huge fan base.

Parody is “an imitation of the style of a particular writer, artist or genre with deliberate exaggeration for comic effect”.[5] A few examples of parodies are ‘Gaana Wala Song’ is a parody of the song ‘Ishqwala Love’ and Michael Gerber’s ‘Barry Trotter’ book series parodizes J.K. Rowling’s ‘Harry Potter’.

Conflict between Copyright protection and Freedom of speech and expression

The Copyright Act protects the creations of human intellect i.e. their unique expressions of ideas. This object sometimes comes into conflict with individual’s right to free speech as it leads to the monopoly of the copyright owners. It restrains individuals from expressing themselves. It limits their scope of expression and movement of creativity. This problem of imbalance is most evident in a situation where it is necessary to adopt a part of a copyrighted work to comment, criticise or review as in case of parody.

A key feature of parody is that it should conjure up the original work in such a way that people can relate the two but it should not violate the copyright of the original work. It is often difficult to draw a line between the two and hence parody is caught in this conflict.

Parody and freedom of speech and expression

The basic premise of allowing works that would otherwise constitute copyright infringement is that there is a social value that outweighs the harm of infringement. Society values parody for its communication of original and creative expressions and they in turn are valued for their productive nature and participation in social dialogue. Critical parodies are a form of healthy, social and artistic criticism, and excluding parodic criticism silences this powerful expression.  Satirical items add to political, social discussion. They are also valued for their humorous expression and entertaining dialogue.

Thus denying parodists the opportunity to poke fun at symbols and names which have become woven into the fabric of our daily life, would constitute a serious curtailment of freedom of expression.

Hence parody should be protected as a free speech because it proves as a tool of societal development and progress. It is equally necessary to protect the creator’s rights. Therefore a balance has to be struck between the two with the help of certain exceptions and limitations.

Is parody a copyright infringement?

The ever increasing popularity of parody has resulted in a debate as to whether it is a copyright infringement. Copyright infringement takes place when the creator’s original work is reproduced directly or from memory. The act of copying may also be the result of reproducing an original work indirectly, which is from a copy thereof.[6]

Parody is not possible without reproduction of certain amount of work from the original content. A prime characteristic of parody is to create an amusing situation, which may violate the rights of the creator and cause copyright infringement.

Infringement of copyright occurs when a person does, without the consent of the copyright owner, anything which is the sole right of the copyright owner as per the statute.

In Otto Eisenchiml v. Fowcett Publications,[7]  Chief Judge Duffy observed-

An infringement is not confined to literal and exact repetition or reproduction; it includes also the various modes in which the matter of any work may be adopted, imitated, transferred, or reproduced, with more or less colourable alterations to disguise the piracy.

Whether parody is a copyright infringement or not can be proved by the following tests laid down by the courts.

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Tests for copyright infringement

1. To test whether substantial part of the work has been reproduced quality of the extract should also be considered and not just its length.
2. Three factor test – The Court in Civic Chandran v. Ammini Amma [8] followed an approach that can help us decide whether a parody is a copyright infringement or not. It took into consideration the following factors – (a) the quantum and value of the matter taken in relation to the comments or criticism; (b) the purpose for which it is taken; and (c) the likelihood of competition between the two works.[9] The three tests are similar to the fair use criteria used in the USA. Such approach can provide the Courts with the necessary assistance to resolve the conflict between parody and copyright infringement.
3. A similar three factor test has also been laid down in Ashdown v. Telegraph [10] in which it was held that the success or failure of the defense depends on three factors: (a) whether the alleged fair dealing is in commercial competition with the owner’s exploitation or work, (b) whether the work has already been published or otherwise exposed to the public and (c) the amount and importance of the work which has been taken.

There is a very thin line that prevents parodies from violating copyrights. This thin line is a blurred spot. To obtain a clear picture of this scenario the Court usually takes help of such tests because neither is every parody a copyright infringement nor is it always exempted from violations.

Defenses Available for Parody

Comparison Between Fair Dealing and Fair Use

Fair Dealing – The term ‘fair dealing’ has not been defined in the Indian Copyright Act 1957. But Section 52 specifically deals with ‘fair dealing’. It provides an exception for copyright infringement for the work for criticism, review only as extracts or quotations from original work and not for reproduction. The quantum of extracts permissible depends upon the circumstances of each case. But any work cannot be used as “fair dealing” to such an extent that it becomes a blatant act of copying the work of another. It is only when the Court has determined that a substantial part has been taken that any question of fair dealing arises. Though once this question arises the degree of substantiality, that is, the quantity and value of the matter taken, is an important factor in considering whether or not there has been a ‘fair dealing.[11] Also, even if the purpose of reproduction is to criticize the portions of the drama or the ideologies of its author, still, it may not amount to ‘fair dealing’ unless the defendants prove that the criticism is fair and justifiable in the facts and circumstances of the case.[12]

To successfully avail the fair dealing defense in India, a parodist has to satisfy two conditions:

(i) he must not intend to compete with the copyright holder and

(ii) he must not make improper use of the original. [13]

Following cases focus on the usage of this doctrine in India –

In Civic Chandran v. Ammini amma, [14] the interlocutory injunction granted by the District Court on the counter drama ‘Ningal Are Communistakki’ written by Mr. Chandran based on Mr. Bhasi’s drama ‘Ningal Enne Communistakki’ was quashed in the appeal because though defendants had reproduced substantial portions of the drama, the Court held that its main purpose was not to copy to convey the same ideas, but to criticize the drama and that it was the original creative work of the defendants.

On the contrary, in Pepsi Co v. Hindustan Coca Cola Ltd [15] the appellants Pepsi Co. sought an interim injunction as the respondents infringed their copyright of ‘Yeh Dil Maange More’ as ‘Kyo Dil Maange No More’ and their roller coaster ride commercial in their own commercial. Defendants claimed that they had parodised the commercial. The Court held that defendant’s commercial was a colorable imitation of appellant’s commercial and that it was a replica hence put a restraint on it.

In these cases, Courts have applied all the tests and through a comparative analysis with the copyrighted work, have decided whether parody can be an exception under fair dealing.

Fair Use – Section 107 of The US Copyright Act deals with fair use. It has a four factor test to determine whether a work is a copyright infringement or not. The four factors are –

• Purpose and character of the use
• Nature of the copyrighted work
• Substantiality of the portion used
• Commercial factor.

These factors have been applied by the Courts time and again to decide the cases of parody.

In SunTrust Bank v. Houghton Mifflin Co.[16] plaintiffs held a copyright in ‘Gone with the Wind’. Defendant, in her critique of this book ‘The Wind Done Gone’, used similar characters, plots, and major scenes in the first half. So the SunTrust filed a copyright action and sought a preliminary injunction to stop the book from publication. In order to use the ‘fair use exception’ the court observes the purpose and characters of a book, its nature, the amount and substantiality of the portion of the book used and the effect on market value of the original. The Court held on these grounds that this parody on the book was appropriate and did qualify for the fair-use exception

In Dr. Suess v. Penguin Book Co.[17] the defendants sought to publish and distribute a book called “The Cat NOT in the Hat! Parody by Dr. Juice”, a rhyming summary of the O.J. Simpson. Plaintiff owned the copyright “The Cat in the Hat”. Defendant’s book had a lot of similarities to the original work, including rhyme scheme, narrative elements and certain chief character identifiers. Plaintiff filed a suit and the Court granted a preliminary injunction. The defendant appealed. The Ninth Circuit in the light of fair use analysis of the defendant’s work analysed that the work was not a parody because it merely mimicked Dr. Suess’s style to attract attention and there was no effort to create a transformative work with new expression, meaning or message was made. The defendant copied substantial portions of plaintiff’s work and its use was also commercial that could harm the original work’s market and thus the preliminary injunction was affirmed.

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These cases clearly highlight that there is no hard and fast rule in the way parodies are treated. It depends on the facts and circumstances of each case.

Transformative work

To be fair use, the use of copyrighted work should be transformative thereby furthering the constitutional goal of promoting the progress of science and useful arts.[18] A use must be productive which uses the quoted matter in a different manner or for a different purpose like criticism as in case of parody.[19] The author should invest his own skill, labor and creativity to make it more distinct from the original work.

Justice Harry Blackmun gave a dissenting opinion that the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.[20]Hence, if parody uses more transformative work, there is no copyright violation in it.

Does Parody Infringe Right To Publicity?

Right to Publicity is defined as an individual’s right to control and profit from original use of his or her name, likeness or persona.[21] Right to publicity is well developed in America but it hardly has any recognition in India.

In Jerry Falwell v. Hustler’s Magazine, [22] the ‘Hustler magazine’ published a parody of an advertisement claiming a Fundamentalist minister, Jerry Falwell, had a drunken incestuous relation with his mother in the outhouse. Falwell sued to recover damages for libel, invasion of piracy and emotional distress. The issue was ‘whether freedom of speech extended to the making of offensive statements about public figures’. The Court held that public figures may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with actual malice. The Court added that protecting free speech surpassed the state’s interest in protecting public figures from offensive speech, as long as such speech cannot be construed to actual facts about its subject.

In Shri Ashwani Dhir  v. The State Of Bihar.[23]a television show titled as “Ram Khilawan (C.M) ‘N’ Family” parodied Lalu Prasad Yadav the former Chief Minister of Bihar. The title character closely resembled him in his distinctive attire, mannerisms and rustic wit and showed him being a party to corruption. The court quashed an injunction against the telecast of the show which was granted earlier on the reasoning that no actual harm was made to the plaintiff who filed the suit to restrain the telecast of the show. The submission that the show denigrated a specific caste to which the CM belonged was not supported by evidence. A creative artist is free to project the picture of society, the political system or the person in politics in the manner he perceives, provided it does not affect public order, decency or morality. It cannot be suppressed on the ground of intolerance of some people or existence of some hostile audience.

In all these cases the Court has held that the publicity right is not violated by parody, because publicity right only protects a public figure against use of his identity for purely commercial purposes, whereas the predominant object of a parody is to criticize and satirize the personality of a public figure.[24]

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Suggestions

• Court should have a liberal interpretation of ‘fair dealing’ and ‘criticism’.  An expansive approach is necessary so that every court can make a fact based decision rather than following precedents as every case varies from the other and this will reduce the stringency of the copyright law thereby promoting creativity and free speech.
• An express statutory exception for parody should be made in the statute as in the case of the UK (Section 30(A) and Schedule 2(2A) of Copyright, Designs and Patent Act 1988 as amended in 2014).Under this, right holders are unable by contract to restrict the use of their work for such acts.  This can help in stimulating creative growth in the society and provide it necessary protection. For this purpose, necessary principles can be laid down to determine whether a work is a parody or not. Some criteria can be.
• parody should be humorous,
• it should not infringe economic or moral rights of the author of protected works and
• it should have substantial modification of the protected works.
• Granting an injunction in copyright cases involving freedom of speech issues would amount to an unconstitutional prior restraint on speech, in such cases, it should be readily granted only in easy cases involving mass commercial reproduction of protected works; in all other such cases, it should be decided completely upon the merits of the case.
• Following factors should be considered before granting it:

1. Whether the injunction significantly burdens the defendant,
2. The magnitude of harm likely to be suffered by the copyright owner if the infringement is not restrained,
3. Whether the implementation of the injunction would be feasible and effective,
4. Whether other less burdensome and comparably effective means of restraining access to the infringing material are available.

• In Hubbard v. Vosper,[25]it was laid down that there should be a     competition between the two works for granting injunction.

• In Civic Chandran v. Ammini Amma, [26] the Court quashed the preliminary injunction against the defendant’s counter-drama because –

1. The defendants had made all expenses and arrangements to stage the drama thus it would have caused irreparable injury and hardship to them whereas it would not caused any such injury to the plaintiff if it was not granted.
2. Because of the public debate and advertising, public was eager to view it
3. It would have a great impact on the political development of the State
4. Even if loss was caused to the plaintiff by staging the counter drama, damages could be awarded to them.

The Court held that the injunction on staging the drama would be unjust and would interfere with freedom of expression as it dealt with matters of current importance thus it would lose all its relevance and would be practically worthless even if the suit was dismissed later. [27]

• Public interest as a defense

India has no statutory provision for this defense to copyright infringement, which is analogous to Section 171(3) of England’s Copyright, Designs and Patents Act, 1988.

In Ashdown v. Telegraph,[28] defendant published minutes of meetings of Britain’s former   Prime Minister without permission, being aware of its confidential nature. Thus plaintiff alleged copyright infringement. The defendant pleaded that the content was disclosed in public interest. But this defense was rejected as it followed the approach of Judge Aldous in Hyde Park v. Yelland [29] that the Court would be entitled to refuse copyright if the work is:

          (i) Immoral, scandalous

          (ii) Injurious to public life, health and safety,

          (iii) Incites to act in a way referred to in ii) [30]

But the Court of Appeal, felt that this test was too restrictive and preferred the reasoning of Mance LJ in Hyde Park, “The circumstances in which the public interest may override copyright are probably not capable of precise categorization or definition”. Hence the court considered that Section 171 of the Act permits the defense of published interest to be raised in such circumstances.” [31]

In India, in Super Cassettes v. Chintamani Rao, [32] the plaintiff sought a permanent injunction to restrain the defendants from engaging in public performance, reproduction, recording, broadcasting or publishing any works in which the plaintiff  had the copyright. In spite of this observation of Ashdown being cited, it has cited with approval the judgment of Judge Aldous in Hyde Park as the Indian position on this point.

Though Indian Courts have ignored this defense for a long time, there are situations where the copyright owner is extremely unlikely to grant a license for unpublished work dealing in matter of public interest as it may cast that person in an unfavorable light. Here, public interest overrides the individual’s rights (including copyright). Hence in such situations, the public interest defense has to be considered positively like in the Ashdown case as it will guarantee more freedom of speech.

• Freedom of speech as a defense –

Being the most crucial fundamental right in a democratic society, it is the mother of all liberties and the essence of a free society. It helps in unhampered flow of opinions and thus leads to discovery of the truth. Expressing opinions, criticisms ensure active participation in democracy and political stability. This is the basic right enshrined in our Constitution.

Parody should be considered as a way of exercising this right. This defense should apply where taking certain part of copyrighted work is necessary for the speaker to communicate his ideas but is not allowed by the internal mechanisms of copyright law. However, it is difficult to identify this necessity.

Barendt has suggested that freedom of expression challenges to copyright claims should only be sustained when copyright law is used to suppress the dissemination of information of real importance to the public or to stifle artistic creativity, parody or satire and when the legislation itself does not provide adequate safeguards for that problem [33]

In Ajay Gautam v. Union of India, [34] a PIL was filed to restrain the exhibition of the Hindi film ‘PK’ on the grounds of hurting religious sentiments, defaming Hindu culture and making a satire on Hindu Gods and saints. The Supreme Court refused to impose such a restriction because one has a ‘right to communicate’. It protects the right of the artist to portray social realities in all forms. Free speech cannot be suppressed on the ground either that its audience will form harmful beliefs or commit harmful acts.

However certain restrictions need to be exercised on this right which is evident in the following case.

Ram Gopal Varma in trailer of his film ‘Rann’ had used a parody of the National Anthem which was subsequently removed because the Central Board for Film Certification refused to air the trailers of the movie with the song in it since it tampers with and distorts the National Anthem. It was held that every line was tinkered to send a negative message. The Bench held that borrowing lines from the National Anthem to create a new song could not be termed an artistic expression since nobody had a right to tinker with it. [35]

Reconciling copyright protection and freedom of speech-

In Wiley Eastern Ltd v. Indian Institute of Management [36] the Division Bench had observed that the basic purpose of Section 52 is to protect the freedom of expression so that research, private study, criticism or review or reporting of current events could be protected. Thus ‘fair dealing’ should be understood keeping in mind the right to freedom of speech enshrined in Article 19(1) (a) of the Indian Constitution. Copyright granted is not in respect of the ideas contained in the works but it is for the tangible form in which they are expressed. [37] The Copyright Act ensures freedom to an individual to have his unique expression of an idea that already exists. But it does not allow to copy the verbatim expression of another person. Hence, copyright is not a constraint on freedom of expression but it tries to establish a balance between the rights of the copyright owner and the freedom of expressions given to others. However it can often be unclear as to what is an idea or expression in a particular case.

In Kenrick & Co. v. Lawrence and Co [38] plaintiff conceived the idea of publishing cards bearing a representation of a hand holding a pencil in the act of completing a cross within a square and procured an artist to do so under his direction. Subsequently the defendant published similar cards but the hand in the defendant’s card was in a slightly different position. Though the idea was clearly taken from the plaintiff’s card, it was held that the defendant had not infringed the plaintiff’s work as there was no copyright in that idea.

Moreover, there is no conflict between the two due to the existence of inbuilt exceptions and limitations within copyright law like the idea/expression dichotomy, the requirement of originality and transformative work, defenses for copyright infringement and the limited term of copyright that extends up to the life of the author and 60 years after his death as per section 22 of Indian Copyright Act 1957. Intellectual property rights are themselves human rights and share the same goals as other human rights; therefore both these sets of rights do not simply co-exist, but also coincide and co-operate. Copyright promotes the creation of distinct and unique expressions safeguarding the freedom of expression and hence both work towards achieving the same objective ‘to guarantee free speech to individuals’. Copyright encourages new independent expressions that are later protected by freedom of expression.Thus, Copyright Law provides an incentive to creativity by effectively protecting it from being reproduced without license. Copyright Law is not an obstruction to free speech because one can express his views and views of others- but not as his own. Hence it is not an obstruction to free speech.

Conclusion

In conclusion the authors firmly believe that Copyright Law encourages free speech and expression and also that Copyright cannot impose restriction over free speech and expression. That encouraging creativity is the aim shared by both, thereby proving the fact that parody is not a copyright infringement. The authors firmly believe that free speech should be promoted in the society as it enhances the free flow of ideas and works hand in hand with public interest. Given the treatment parody suffers in India, the authors suggest a more liberal approach of courts towards parody. Considerable and rational tests to measure the transformation in a work are also suggested.

Therefore in light of the discussion carried down in this paper, it is highlighted that parodies should be encouraged and protected under the intellectual property law and Copyright Law and free speech co-exist and co-operate.

References

[1] History of copyright. What are copyrights ?,HISTORY OF COPYRIGHT.ORG, http://www.historyofcopyright.org/(last visited January 03, 2017)

[2] H.Tomas Gomez Arostegu, The Untold Story of the First Copyright Suit under the Statute of Ann in 1710,25 Berkely Tech. L.J. 1247, 1251-54 (2010)

[3] Copinger and Skone James, Copinger and Skone James on Copyright 34-36, 15th ed. 2008

[4] Karan Maratha Trust v. Devidas Bagal, 1999 PTC 751

[5]Parody, Oxford Dictionary (3rd ed. 2010)

[6] Karan Maratha Trust v. Devidas Bagal, 1999 PTC 751

[7] 246 F 2d 598

[8]1996 (16) PTC 670 (hereinafter Civic Chandran)

[9] Id. at para 8

[10] [2001] 4 All ER 666 (hereinafter Ashdown)

[11] Copinger and Skone James, Copinger and Skone James on Copyrights 196 11thed  1971

[12]  Civic Chandran, supra note 14  at para 51

[13] Rahul Saha and Sryon Mukherjee, Not so funny now is it? The serious issue of parody in intellectual property law, 1 IJIPL 45, 48 (2008)

[14] Civic Chandran, supra note 14

[15] 2003(27) PTC 305

[16] 252 F. 3d 1165 (11th Cir. 2001)

[17] 109 F.3d 1394

[18] Campbell,supra note 6,  at 579

[19]  Pierre N. Leval ,Toward a Fair Use Stanadard, 103 Harv.L.Rev. 1105, 1111 (1990).

[20] Sony Corp. of America v. Universal City Studios, Inc. 464 U.S. 417, 451 (1984)

[21] Byrd,L., Privacy Rights of Entertainers and Other Celebrities: A Need for Change, 5 Ent & Spots L.J. 95, 100 (1998)

[22]485 U.S. 46 (1988)

[23] AIR 2005 Pat 101

[24] Saha and Mukherjee, supra note 18, at 52

[25] 1972 2 WLR 389

[26] Civic Chandran, supra note 14, at para 26

[27] Civic Chandran, supra note 14, at para 23

[28]  Civic Chandran, supra note 14, at para 23

[29] (2000) R.P.C. 604

[30]  Id. at para 66

[31] Ashdown, supra note 13, at para 58

[32] 2012 (49) PTC 1 (Del) at para 81

[33] Eric Barendt, Copyright and free speech theory, in COPYRIGHT AND FREE SPEECH: COMPARATIVE AND INTERNATIONAL ANALYSES 11, 32-33 (Jonathan Griffiths and Uma Suthersanen eds 2005)

[34] W.P (C) No. 112/2015

[35] Shan Kohli, Parody of National Anthem: Ram Gopal Varma ki Nayi Aag, 3 NULS L. Rev. 215, 216-227 (2010)

[36] 61 (1996) DLT 281 (DB)

[37] Taraporevala, supra note 29, at 174

[38] (1890) 25 Q.B.D. 99