When Are You Making Your Star Wars Advert?

4th October, 2014, in Intellectual Property.

 

The new law on parody is here. So, what can you do? What will you do? What if you parody a parody?!

StormTrooper

When are you making your Star Wars Advert?

It’s October. The law has changed.

Boring stuff – The Rights in Performances (Quotation and Parody) Regulations 2014 came into force on 1st October 2014. SOOOOO what. Well it inserted after a new section 30A in to the Copyright, Designs & Patents Act 1998 a section which says that:

“Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.”

Woah! The GreenPeace repsonse (see here) to the Volkswagon advert (see here) with with kids dressed up as Star Wars characters, which Lucasfilm asked Youtube to remove, might also be legal. But that was a parody of a parody! So how will it all work? 

Firstly you can't contract out of it.  The new amendment says that you can’t. So does that give you free reign? Will you release your new Star Wars advert too? You see the thing is, the GreanPeace advert was a parody of a parody and the first parody almost certainly involved VW getting permission from Lucasfilm and the second GreenPeace parody was obviously not for profit. Can you say the same? Why is it important?

The reason is simple – it’s the phrase ‘fair dealing’ and this doesn’t, as you might imagine, mean simply what it says but there are a number of factors the court will take into account. For example, did its use affect the original market for the work? Is it just a substitute for it? Is the amount of work used reasonable? Once again, it’s question of fact and degree. No doubt you will have to consider whether if your business through parody makes money from employing someone else’s material is it really fair (or will the courts think so) to deprive them of, for example, a licence fee?

Further this new right surely to be loved by comedians and mash-up artists doesn’t do away with other laws on libel, slander and the publication or – however good the parody – or all other law concerning the publication of information including those that attract criminal sanctions.

Still if you wanted to know what constitutes parody, you can thank the European Court of Justice by throwing its hat in to the ring by saying that it has to be well, ‘funny’ (see Deckmyn and Vrijheidsfonds [2014] EUECJ c-201/13 (3 September 2014)).

Well, there we are. Did you hear the one about the Storm-trooper crossing the road? 

 

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