PARODIES- LET’S LAUGH OR LET’S INFRINGE? By Aritri Sarma from Symbiosis Law School
Who hasn’t watched parodies? The fact that you are reading this article and hence have online access is enough for me to ascertain that you have come across one or two for sure. AIB, Superwoman, Connor Franta and who not have their prime source of income via their online parody channel. But has it ever crossed your mind, are these parodies even allowed by law? Aren’t these copyright infringement- after all you are imitating others idea- just with a little twist.
WHAT IS A PARODY?
It literally can be defined as a work that humorously and critically comments on an existing work to generally expose flaws. For a parody to be a success, the audience must first identify the original work.
WHY CHECK THEIR LEGALITY?
Now, this piece might create confusion in some that why to bother with the legality of parody- not like they are killing the original work anyway. So why draw a line? Well, a parodist can-
- violate author’s rights over duplication and distribution of their creation.
- violate right to publicity.
- violate the oral rights off the author by injuring his honour or reputation.
But the issue that arises here is that in India, copyright laws are still not on fast tracks. Parodies are considered to be in gray areas with more or less non-existent precedent. Hence, we do not have any straight jacket formula to decide whether a given parody is legal or not.
Section 52(1)(a) vaguely gives for the law in case of parodies. It stipulates fair dealing with literary work for the purpose of criticism or review. To constitute fair dealing, there must not be any intention on the part of the alleged infringer to compete with the copyright holder of the work or to derive profits from such competition. Further, the motive must not be improper, i.e they must not have to motive to get improper advantage of the original work.
The category of parodies can be two- those which produce substantial portions of the original work or those who just adapt the idea. Though the latter does not create much of an issue, discrepancy starts in case of the former. Such parodies may be permissible to the limited extent wherein they criticise the original work.
Now the question is- what does one mean by ‘criticism’. This term has been given limited scope- if the parody reproducing the original work merely aims at mocking the original work without actually criticising it, then it may not get the protection of Section 52 of the Act.
CIVIC CHANDRAN V. AMMINI AMMA[i]
- The artistic work challenged was a counter drama of the original work of ‘Ningal Enne Commnistaki’ written by Thoppil Bhasi. The play dealt with the burning social and political problems of its days by the Communist Party of India before its split.
- The counter drama is written by the intended to convey the message that though the party had succeeded in coming to political power; it had forgotten the depressed classes who were instrumental in its success, who had made substantial sacrifices for the party. The counter drama used substantial portions of the original, with some alterations required for its purpose. The characters and dialogues in the original were also reproduced in some instances.
Held, that reproduction was not misappropriation for the purpose of producing a play similar to the original as the purpose was to merely criticise the idea given by the original drama and to expose to the public that it had failed to achieve its real object. Further, there was no likelihood of competition between the two works in question - the motive was merely criticism. Hence it amounted to fair dealing and did not constitute an infringement of copyright.
The factors considered by the Court were: (1) the quantum and value of the matter taken in relation to the comments or criticism; (2) the purpose for which it is taken; and (3) the likelihood of competition between the two works.
Whether parody actually infringes one’s copyrights?
A parody, to be seen does not mutilate, distort or modify the original work. It is a new and independent work in its own right. It merely borrows certain elements from existing work.
Hence, a parody cannot be said to be in violation of the integrity of the author.
[i] 16 PTC 329 (Kerela).
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