Fair Use in Parody and Satire: Analyzing the Boundaries of Creative Expression

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8 months ago

Author: Abhishek Yadav, LLM(IP), Amity Law School Noida, Amity University Noida

Abstract

Satire and parody create a colorful tapestry in the ever-changing worlds of literature, film, and art. These forms offer potent instruments for social commentary, humor, and critique, from the playful twists of Bollywood remakes to the savage wit of stand-up comedians. However, great expression also entails a responsibility to stay within the law, especially when copyrighted content is involved. Section 52 of the Copyright Act defines “fair dealing” for certain purposes such as research, criticism, and review, even though there is no clear “fair use” doctrine. Parody enjoys some protection under fair dealing because of its transformative quality and commentary. Satire’s wider emphasis on concepts and establishments makes it more ambiguous in law because it may damage someone’s reputation. This article delves into the complex relationship between fair use, parody, and satire within the Indian legal framework

Parody: The Mimic with a Different Message

Parodies have become very popular on the Internet, and most social media content nowadays is memes, reviews, covers, satires, and other similar content. Parodies are copies of works that are made by extending the original. Any artistic medium, such as music, visual art, film, and literature, can be used to convey it. It’s not always necessary for parodies to make reference to or mock particular works. It might refer to another item that it wants to draw attention to, criticize, or place in a different context.

The word “parody” comes from the ancient Greek word “paroidia,” which combines the words “para” (beside) and “ode” (song). The earliest known instances of parodies date back to ancient Greece, when authors would humorously mimic the elements of tragic plays or poetry. These Greek humorous interpretations of preexisting works laid the groundwork for parody, which did not always mock the source material. This is also reflected in the term “parody,” which comes from the Greek prefix “par,” or “para,” which can denote anything that is opposite or counter to something else as well as something that is next to, beside, or related to another thing. It is difficult to categorize or define parodies because their meanings have changed slightly over time.

By definition, a parody necessitates that the viewer must be aware of both the original work and the manner in which it is criticized or made fun of. Because of this, it is claimed that a parody borrows from and is dependent upon the original work. As a parody basically depends on the original work, which could give rise to copyright problems if it does not pass the sustainability test in accordance with IP laws. In the absence of straight jacket statutory laws, the court’s precedents have repeatedly upheld parody under the justification of “Fair Use” of such work.

Parodies include the song “Gaana Wala Song,” which is a parody of “Ishq Wala Love,” and Michael Gerber’s “Barry Trotter” book series, which parodies J.K. Rowling’s “Harry Potter.” Other examples of parodies include the famous “Sholay” scene that is recreated in “Munnabhai MBBS,” and the clever political parodies found in “Sacred Games.”

Satire: Beyond the Specific

The definition of satire in relation to contemporary politics and other contentious issues is “the use of humor, irony, exaggeration, or ridicule to expose and criticize people’s stupidity or vices.” Although humor is a tool used by both satire and parody to convey a message, the goal of a parody is to critique or comment on the work that is the subject of the parody. A parody is, by definition, a humorous analysis of a work of art that calls for the work to be imitated. Satire, on the other hand, frequently makes fun of concepts, organizations, or people without specifically mentioning a work that is protected by copyright. The scathing social commentary in stand-up routines or the biting political cartoons found in newspapers could be thought of as satires.

Satire undoubtedly contributes to social critique, but how exactly it is protected by fair dealing law is still up for debate. The uncertainty arises from the possibility that it could damage the reputation of a person or organization, giving rise to worries about privacy and defamation.

Fair Use: A Patchwork of Precedents

India’s Copyright Act, 1957 takes a more nuanced approach than the US’s codified doctrine of “fair use”. The notion of “fair dealing,” as defined in Section 52, permits the restricted use of copyrighted content for particular uses like reporting, criticism, review, and research. It does not, however, specifically address parody or satire, so authors are left to juggle a patchwork of legal precedents and interpretations. Section 52 of the Copyright Act provides a limited legal provision for fair dealing, which is restricted to “criticism” and “review.” This is not the same as the broad definition of fair use provided by US law. Parodies are based on the underlying copyright of original works, so a literal and conservative interpretation of fair dealing would severely restrict their scope. A parody must utilize some portion of the original work’s copyright to be produced. It is crucial to establish some guidelines to discern between fair dealing and infringement because there is a very thin line that separates criticism or review of a work from its imitation.

The question of whether parody would fall within the exceptions under the act was answered by the Kerala High Court in Civic Chandran v C Ammini Amma, wherein a copyright infringement suit was filed against a play that critiqued another theatre work.

The court held that whether or not the latter’s play was sufficiently transformative to qualify for the fair dealing exception would depend on the relevance of the issue in light of which the criticism that was made, the goal of the critique, and the possibility of competition between the two works. Intent is yet another crucial factor that needs to be taken into account when determining whether a parody would be covered by the fair dealing exception. Under the act, it would be considered infringement if the purpose was to profit from the goodwill of an original work.

As a result, as far as the Kerala High Court is concerned, a parody is considered fair dealing as long as it uses copies from the original to critique it rather than causing improper use of the original.

Following the Civic Chandran case, the range of protection afforded to parodies was increased when the courts implemented the three-pronged test to determine whether a parody violates the copyright of an original work. The use of or replication of the original work in parodies is allowed to some extent because the judiciary is of the opinion that, unlike other forms of fair dealing, parodies demand some taking from the existing work by nature. Nonetheless, in certain instances, the judiciary has determined that a parody violates an individual’s copyright. An example of this is Pepsi Co v Hindustan Coca-Cola Ltd, case which involved Coca-Cola making a parody of Pepsi’s Yeh Dil Maange More commercial.

Pepsi Co., the appellants, requested an interim injunction against the respondents for violating their copyright to “Yeh Dil Maange More” as “Kyo Dil Maange No More” and their roller coaster ride commercial in their own commercial. The defendants argued that they had made parody of the advertisement. The defendant’s commercial was then placed under restraint by the court, which determined that it was a replica and a colorable imitation of the appellant’s commercial.

Parody and Freedom of speech and expression

Parodies are a vital part of contemporary culture, and the freedom to criticize deeply ingrained symbols and practices not only gives a voice to differing viewpoints but is also essential to a healthy democracy. Suppressing parodic criticism silences a potent form of social and artistic criticism that is healthy for society. Satirical content enriches social and political discourse. They are prized for their entertaining dialogues and expression as well. Refusing parodists the chance to ridicule names and symbols that have become interwoven in our everyday lives would be a grave infringement on the right to free speech. As such, the courts have typically applied the right to free speech and expression as a defense against copyright infringement and defamation on a case-by-case basis.

The US definition of fair use has been agreed upon by the Indian courts as much as it involves the constitutional right of freedom of speech and expression. Agreeing with the US Supreme Court’s ruling in Hustler v Falwell, in Shri Ashwani Dhir v The State of Bihar, the Patna High Court determined that Article 19(1)(a) of the Constitution protects the producers’ rights, and a restriction on the airing of a TV series that made fun of Bihar’s chief minister, Lalu Prasad Yadav, would be a violation of the fundamental right to freedom of speech and expression.

But at the same time, the government has restricted people’s rights in certain situations, like when they make fun of the national anthem. In contrast to the German Federal Court’s ruling in German National Anthem case, where a parody of the German national anthem was published in a magazine and found to be a legitimate exercise of the freedom of speech and expression under the German Constitution, the censor board removed the parody from the movie Rann.

In Ajay Gautam v Union of India, the movie PK was supposed to be a satire on Hindu gods and goddesses, but the Supreme Court declined to put a hold on its release. The court ruled that the freedom to use satire to convey social reality is unalienable and cannot be restricted because it might lead to the inculcation of false beliefs in viewers.

In Whiley Eastern Ltd v. Indian Institute of Management, the court concluded that inclusion of fair dealing in the Copyright Act is essential to allow for the freedom of research, private study, criticism, review, and reporting of current events. It did this by drawing a connection between fair dealing under Section 52 and the freedom of speech and expression under Article 19(1)(a) of the Indian Constitution.

The fundamental idea behind accepting works that would otherwise be considered copyright infringement is that the benefits to society outweigh the negative effects of infringement. Parodies are valued by society for their ability to communicate unique and creative expressions, and they are valued for their ability to contribute to social discourse and be productive. Because parody serves as a tool for societal advancement, it should be protected as free speech. Safeguarding the rights of the creator is equally imperative. Therefore, with the aid of a few exclusions and restrictions, a balance between the two needs to be achieved.

Conclusion: Lex Ferenda

The absence of a precise definition of fair dealing in Indian law gives rise to numerous pitfalls when interpreting the term in legal contexts. Due to this, the legal interpretation of the term becomes extremely subjective in each case and presents a number of challenges. Parodies encourage creativity and the development of ideas, which is consistent with the objective of the Copyright Act. This means that the rights of the author over his copyrighted works and the interests of society as a whole, including the fundamental freedom of speech and expression, must be balanced by the courts.

Copyright rights have inherent and implied limitations because they are not absolute rights. In the same way that a person’s right to free speech and expression permits the criticism and alteration of a work that is protected by copyright, copyright only protects a particular form of expression of ideas. Maybe the answer to this problem is to define parody, clarify its boundaries, and strike a balance between these conflicting rights. As has already demonstrated, the Copyright Act’s narrow definition of fair dealing puts courts in a difficult situation and discourages artists from producing works that would otherwise be considered parodies.

Although the right to freedom of expression may be extended by the “fair use” defense, its strict application is implausible.

Not all parodies fall under the fair use umbrella, and there is a need for clear laws to deal with the ones outside the purview of this defense. The range of defense against parodies ought to be reduced and handled on case to case basis.

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