The Government has just finalised the new exceptions to the law of copyright for caricature, parody and pastiche.
The change to the Copyright, Designs and Patents Act 1988 is short and succinct:
“Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work”.
The meaning of “fair dealing” has been considered in various Court cases in the context of the other fair dealing exceptions (e.g. criticism, review and reporting) and there are three important factors:
- Does the new work compete commercially with the exploitation of the original work, to the extent that it is a substitute for the probable purchase of authorised copies? If so, then it’s very unlikely to be fair dealing.
- Has the work been published or otherwise made available to the public? If not, then as a general rule, it’s unlikely to be fair dealing.
- How much of the original work has been taken? If an excessive amount has been copied, then again, it’s unlikely to be fair dealing.
Of course, until there are test cases, it’s impossible to say how these existing factors will be applied to caricature, parody and pastiche.
For example, will it be acceptable for clothing retailers to sell T-shirts with humorous slogans or images that are suggestive of well-known brands, films or other copyrighted images? Only time will tell.
The new exceptions come into force on 1st June 2014.
Matt Worsnop is an Associate Solicitor at BHW Solicitors in Leicester and writes regularly on intellectual property matters. Matt can be contacted on 0116 281 6235 or by email at matt@bhwsolicitors.com.