Two interesting developments related to parody/satire and the law have caught my attention of late. Warning: long post ahead (I’ve been writing this one paragraph at a time for a while).
The first comes from the murky waters of English defamation law, though it ends with a victory for the newspaper. The claimant, Elton John (not a stranger to the libel courts) argued that a spoof ‘diary’ in the Guardian was defamatory; the Guardian’s defence was that the words could not have the meaning that John alleged, as the satirical purpose was clear. In a significant decision John v Guardian News & Media  EWHC 3066, Mr Justice Tugendhat finds for the Guardian on this point, thus – in effect – destroying John’s case as there’s very little left beyond it. One of the most interesting points is in paragraph 22, where the judge explains the placement of the article in the Weekend section (‘not the news section’) which may well be of use to future defendants. While there is no express, standalone ‘defence’ of satire, parody or irony under libel law, in practice there are certain things that are taken to be easy to defend as not carrying a defamatory meaning. This decision clarifies the scope of this defence and is a helpful one. Further comment here and here, and read the original article by Marina Hyde here.
The second is from further afield, being the exchange on a number of excellent Canadian IP blogs regarding a decision of the British Columbia Supreme Court, Canwest v Horizon 2008 BCSC 1609. In this decision (at a preliminary stage in an ongoing case), the producers of a ‘fake’ edition of the Vancouver Sun are prevented from relying on parody as a defence to a copyright infringement claim. In the US, of course, this was the weapon of choice for a note-perfect fake New York Times (content and legal issues discussed here. The precedent relied upon is a curious enough case I remember from student days, Michélin v CAW (1996). Infamously, in this case relating to the use of Michélin trademarks and copyrighted images by trade union CAW in a campaign against Michélin, it was found that:
parody does not exist as a facet of ‘criticism,’ as an exception to infringement in Canadian copyright law. (It is accepted that) parody in a generic sense can be a form of criticism; however, it is not ‘criticism’ for the purposes of the Copyright Act as an exception under the fair dealing heading
Carys Craig argued in her contribution to the Michael Geist-edited In The Public Interest book on Canadian copyright law (available here) that subsequent Canadian cases (in particular CCH v Law Society) cast doubt on the Michélin precedent, and Giuseppina D’Agostino makes a similar argument, informed by a comparative analysis of Canadian, US and UK cases and legislation, e.g. here . I would expect that, if the decision to strike the defence in the Horizon case is appealed, this point would be made with some force (I don’t know if it was made in advance of the BC decision – the judgement does not reflect it in any event). The issue is ably summarised in a recent post at IPOsgoode by Anna Shahid. There is also a very interesting exchange between lawyer-blogger Howard Knopf and Osgoode professor Guise D’Agostino on Knopf’s blog here and here, on the question of various approaches to legal reform, legislative and otherwise.
David Vaver adds in a comment that Michélin is wrong and also that the defence in Horizon was struck out without sufficient consideration of the constitutional issues. That indeed is a troubling point.
This area is the subject of some interest across the common law world. Three examples:
1. In the UK, it was recommended in the 2006 Gowers Report that a specific defence for parody/satire/pastiche be introduced (Recommendation 12) . Further information here. (Gowers himself is back in the news this week as an opponent of the proposed extension of copyright term for sound recordings. More on that soon).
2. In Australia, there is a specific provision in copyright law introduced in 2006:
A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire (s 41A, Copyright Act)
A fair dealing with an audiovisual item does not constitute an infringement of the copyright in the item or in any work or other audiovisual item included in the item if it is for the purpose of parody or satire (s 103AA, Copyright Act)
3. Finally, a discussion document on a similar clause is planned in New Zealand for this month.