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28 September 2020
The word 'parody' derives from ancient Greek, where it was referred to as 'paroidia' – a combination of the words 'para' (beside) and 'ode' (song). A parody is a work created for the purpose of imitating, making fun of or commenting on an original work by targeting its subject or theme or the author's style of presentation by way of a satirical imitation. In short, parody is a form of criticism or ridiculing of a copyrighted work of another person. Various jurisdictions provide protection to parodies under the doctrines of fair use and fair dealing.
For example, fair use is an exception provided for under the US Copyright Act 1976. The exception covers:
As such, criticism and parody, in particular, are covered under the transformative work exception. However, most common law jurisdictions use the concept of fair dealing as an exception to rights under copyright law.
Although the term parody is not mentioned in the Indian Copyright Act 1957, Section 52(1)(a)(ii) thereof states that "criticism or review, whether of that work or of any other work" would not amount to copyright infringement and would constitute fair dealing under the Copyright Act. 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,(1) wherein a copyright infringement suit was filed against a play which critiqued another theatre work.
The court held that the value of the matter in relation to the criticism presented, the purpose for which the critique was made and the likelihood of competition between the two works would determine whether the latter play was transformative enough to fall within the fair dealing exception. Further, another important element which must be considered while examining whether a parody would fall within the scope of the fair dealing exception is intent. If the intent is to exploit the goodwill of an original work, that would amount to infringement under the act.
The legal provision for fair dealing, as provided under Section 52 of the Copyright Act, is limited (ie, it is restricted to 'criticism' and 'review'). This differs from the definition of fair use which is expansively defined under US law. A literal and conservative interpretation of fair dealing would greatly limit the scope for parody, primarily due to the fact that parodies are based on the underlying copyright of an original work. If a parody is to be created, it must rely on at least some of the copyright of the original work.
Following Civic Chandran, the courts applied a three-pronged test to adjudicate whether a parody infringes the copyright of an original work, thereby expanding the scope of protection available to parodies. An example of this is Pepsi Co v Hindustan Coca-Cola Ltd,(2) which involved Coca-Cola's parody of Pepsi's Yeh Dil Maange More commercial. The court agreed that there was copyright infringement and held that the defendant's commercial was a copy of the plaintiff's and consequently banned the defendants from airing the same.
At the same time, the Indian courts have agreed with the US definition of fair use in 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,(3) in Shri Ashwani Dhir v The State of Bihar,(4) the Patna High Court held that:
However, at the same time, the authorities have limited the rights of individuals in specific cases, such as parodying the national anthem.(5)
This leads the question of the jurisprudential basis for allowing parodies (ie, freedom of speech). Parodies play an important role in modern society and the right to criticise symbols and customs that have been engrained in society provides an important outlet for not only varying opinions, but is also a fundamental component of a functioning democracy. As such, the courts have generally adopted a case-by-case basis for the application of the right to free speech and expression as a defence for copyright infringement and defamation. Contrasted with its decision in the Rann case, in Ajay Gautam v Union of India,(6) the Supreme Court refused to stay the release of the movie PK, which was claimed to be a satire on Hindu religious figures and gods and goddesses. The court held that the right to communicate social reality in the form of satire is protected and but could not be compromised on the basis that it would incite harmful beliefs in an audience.
The lack of a concrete definition of fair dealing under Indian law creates various pitfalls regarding the term's legal interpretation. As the rights contained in copyright are not absolute, they have inbuilt and implied limitations. Copyright does not protect ideas but only the specific form of expression of the same, in the same way that the rights of a person to free speech and expression would allow for the criticism and transformation of a copyright protected work. Arguably, a definition of parody, outlining its scope and limitations and balancing these competing rights, may be a solution to this issue. As illustrated above, the lack of scope of fair dealing contained in the Copyright Act creates a pitfall for the courts and stifles the creative ability of artists to create works which would be parodical in nature.
For further information on this topic please contact Kunal Seth at Saikrishna & Associates by telephone (+91 120 463 3900) or email (email@example.com). The Saikrishna & Associates website can be accessed at www.saikrishnaassociates.com.
(5) For example, the censor board's removal of the parody of the national anthem in the movie Rann as opposed to the German Federal Court's judgment in German National Anthem, where a parody of the German national anthem was published in a magazine and held to be a valid exercise of the freedom of speech and expression under the German Constitution.
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