You can’t be serious: satire, parody and copyright

by Colin Peacock / 14 May, 2018
Mediascrap

Vaughan Smith mocks the media in WatchMe's on-demand show 'Mediascrap'. Photo/Screenshot.

Many countries allow citizens to pinch bits of TV shows, movies and songs to take the mickey out of them. But our copyright law still has no exception for parody and satire. Should we take our lead from Australia which has had one for more than a decade?

Each week Vaughan Smith takes bits and pieces from recent TV shows and broadcasts, and he mocks them mercilessly in Mediascrap (or 'Medias-crap' according to the show’s own logo) on NZME’s video-on-demand platform Watch Me.

Smith can say what he likes about rival media companies' shows because it's a free country.

But while the Copyright Act allows for limited use of copyrighted material for the purposes of criticism and review, there is no specific exemption for parody and satire.

Listen (16m):

Those rival companies don't seem to mind their content being filleted for fun. All publicity is good publicity, as the saying goes...

But in strictly legal terms, such use will usually be a breach of copyright.  

Vincent Konrad has been illustrating, drawing comics, and writing for many years in Wellington.

He told a recent Nethui forum copyright was about compensation for creators to earn enough money to survive.

"Beyond that though, there shouldn’t be issues with copying. Disney shouldn’t care that I’ve drawn a picture of Aladdin," he said. 

In many other countries around the world, he wouldn't have to worry.

Neither would Auckland Law School students Adelaide Dunn, Olivia Lubbock and Zoe Ellwood. 

In 2014, they produced a devastating parody of Robin Thicke's sleazy Blurred Lines video which went viral online around the world.

At the time, one of New Zealand's leading copyright experts Rick Shera worried whether Defined Lines was strictly legal.

"We don't have an exception in our Copyright Act for parody and satire, unlike the US and many other common law countries,' he noted on his blog.

"New Zealand needs to up its game in these areas," he concluded. 

In late 2008, the Labour-led government considered an exception for parody and satire, but within a month they were out of power and the review went nowhere.

Three years later, Green MP Gareth Hughes drafted a member’s bill to change the law, but that was never drawn from the ballot and eventually he withdrew it because last year the government announced a full review of the Copyright Act which is now under way.

Last week National MP Simeon Brown introduced his own bill to amend the Act:.

Section 42 amended (Criticism, review, and news reporting) Replace section 42(1) with: (1) Fair dealing with a work for the purposes of criticism or review, of that or another work or a performance of a work, does not infringe copyright in the work if such fair dealing is accompanied by a sufficient acknowledgement, or if the purpose is for parody or satire.

But isn't politicians removing roadblocks to satire and parody a bit like the proverbial turkeys voting for Christmas?

"It's about freedom of expression," Brown told Mediawatch.

"(Satire) has happened for centuries. There is an interest in the community for more of it. A law change is a sensible way to give people that freedom," he said. 

Brown said no-one in any creative industry had reacted badly to his bid to change the law. 

It remains to be seen if and when his bill gets pulled from the ballot to force the issue, but in the meantime the Act is still under review.

Key considerations will be whether an exception would disrupt the balance between the competing interests of copyright creators, owners and users.

Follow the neighbour?

Most EU citizens making limited use of copyright material for parody are protected by the European Copyright Directive which came into force in 2014.

Australia got its exception in 2006 as a result of a free trade agreement with the US. 

So, how’s it working out across the ditch - and should we follow their lead?

"We have an exception that allows for what we call 'fair dealing'. You can use someone else's copyright material as long as your use is fair," said Australian copyright law specialist Carolyn Hough, who advised the Australian Law Reform Commission in a review of the law there in 2016. 

"Fair' means that the copier is not directly competing with the copyright holder's market. 

Carolyn Hough.

"Some people believe there are no circumstances ever where a parody would harm the market for a work. Some argue a parody enhances the market for the original version. For example, if someone hears the Weird Al (Yankovic) version of a song and thinks: 'That was great. I might check out the original version'," she said. 

The change in Australia followed a legal wrangle over a popular topical Channel 10 show The Panel.

"It was an attempt by one network to stop another one using their content in a successful show," Hough told Mediawatch. 

When the guest panelists played and discussed clips taken from recent shows on rival channels, it was generally thought to be 'fair dealing.' But when they just showed clips because they were funny, a court found them liable for copyright infringement.

"The courts had to say: 'Is this criticism, is it review? Is it reporting? Or is it just 'funny'?" she said. 

"We didn't have an exception for 'funny'".

A review of the law followed which paved the way for an exception for parody and satire.

"We've had a decade of people using other's works. The broadcast world has not collapsed," she said.

Problem solved? Not quite. Carolyn Hough said people who did re-mix art or fan fiction didn't have the same protection. 

"They may just want to celebrate someone else's work, or just be funny. The limits of parody and satire are not clear," she said. 

This article was first published on RNZ.

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