On 1st October 2014, a long-awaited change to copyright law came into force in the UK. It has particular relevance to those involved in producing or distributing digital content. But it does not go as far as some might think.
The new law provides that “fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work”[1]. It ostensibly opens up the possibility of the (parodic[2]) audio/video mash-up emerging from the legal shadows – as exemplified by the launch on YouTube, on the very day that the new law came into effect, of Cameron’s Conference Rap.
This widely seen[3], very skilfully compiled, somewhat rude[4] mash-up by the artist[5] known as Cassetteboy features heavily edited film of David Cameron’s speeches at various Tory Conferences synchronized with portions of Eminem’s best-selling Lose Yourself. Unlike many previous mash-ups, Cameron’s Conference Rap has remained online for a protracted period[6] – becoming, as a result, an emblem of the new law.
Cassetteboy appears to have anticipated this symbolic status: cheekily, the YouTube page for Cameron’s Conference Rap thanks Mr Cameron (“Dave”) for “legalising parody videos”. And it is true that the new law does this. But only up to a point. On close examination, it could also be seen as a recipe for dispute over coming years.
There are three major areas of concern:
1 Fair dealing. The new law permits “fair dealing” with another work for parodic purposes. In the view of the UK’s Intellectual Property Office, as expressed in an updated Guidance it has issued, this means you may take only “a limited, moderate amount of someone else’s work” – otherwise you need to obtain the copyright owner’s permission. The IPO goes on to say that “it would not be considered ‘fair’ to use an entire musical track on a spoof video”, but (perhaps understandably) the IPO doesn’t give any further guidance on what constitutes “a limited, moderate amount”. So there remains a difficult question: how much of a musical track[7] might it be considered fair to use ?
Take Cameron’s Conference Rap, which lasts for 1 minute 50 seconds. Its musical content is entirely composed of various extracts from Lose Yourself. However, none of those individual extracts is particularly long: Cassetteboy cleverly loops them together. The extracts don’t include any of Eminem’s vocal, either. Could it be argued that the extracts are too numerous, or (either individually or taken together) of too long a duration, to be “fair” ? What if the extracts were, say, thirty (or more) seconds long ? Or they included substantial portions of Eminem’s voice ? At what point does “fairness” end in the context of a parody mash-up ?
2 Moral rights. There is also the question of the relationship with moral rights. In particular, what if the holder of the moral rights in a work, who in some cases is not the same person as the copyright owner, were to claim that the parodic use of that work abused his/her moral rights by constituting “derogatory treatment” of the work ? There is nothing on the face of the new legislation which would prevent such a claim being made. Indeed, the IPO points out in its Guidance that “if a [parodic] use amounts to derogatory treatment, rightsholders will still be able to take legal action to prevent its use”.
So if Cameron’s Conference Rap had in some way disparaged Lose Yourself (which, in this writer’s opinion, it does not), would a rightsholder, perhaps Eminem himself, be entitled to claim that his work had been derogatorily treated and that his moral rights had thus been infringed ? In principle, the answer would appear to be yes. Then the really difficult question arises: at what point does parody of a work edge into the derogatory treatment of that work ?
3 EU law. Finally, there is the relationship with European Union law to be considered. In particular, a decision of the European Court of Justice on 3rd September 2014[8], in which the Court decided that parody is an “autonomous concept” of European law – and, as a result, the “concept of ‘parody’…must be interpreted uniformly throughout the European Union”[9]. The Court concluded that this uniform interpretation requires national courts of EU states to determine whether certain key criteria have been satisfied in each case, namely whether the parody (a) “evokes” an existing (copyright) work but is “noticeably different” from it, (b) “constitutes an expression of humour or mockery”, and (c) strikes a “fair balance” between the rights of the owner of the original copyright work and the “freedom of expression” of the parody’s creator.
Of these, the EU Court’s “fair balance” test seems likely to be the most difficult to apply. It is clearly similar to UK law’s “fair dealing” concept, referred to in point 1 above. But will it be interpreted differently ? If so, will the effect be that a parodic work needs to satisfy both a “fair dealing” and a “fair balance” test ?
In reality it will take court decisions over time to iron out the tensions:
- within the new law itself (what constitutes fair dealing in the context of parody);
- between parody and moral rights (at what point does parody become derogatory treatment of an underlying work); and
- between the new UK law and the “autonomous concept” of parody under EU law.
In the meantime creators and distributors of parody mash-ups will need to make difficult judgement calls on these issues – and hope that they do not overstep the mark. In the sure knowledge that rightsholders, such as recording artists and record companies, will be watching and making their own assessments. No doubt creators of parody mash-ups will take succour from Cameron’s Conference Rap. But they will need to exercise great care when endeavouring to replicate its success.
Liam McNeive | Partner | Smiths-Law LLP
[1] The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014, Section 5.
[2] For simplicity, references to parody in this note include caricature and pastiche.
[3] Over four million views, at the time of writing.
[4] An oedipal epithet is used repeatedly in the video. Smiths Law does not wish to associate itself with such profanity.
[5] In reality, a duo called Mark Bolton and Steve Warlin.
[6] More than a month, at the time of writing.
[7] This note focuses on the musical content of the mash-up video.
[8] Deckmyn and another v Vandersteen and others
[9] Directive 2001/29/EU gives to EU Member States the option to allow “use for the purpose of caricature, parody or pastiche” as an exception to the exclusive rights reserved to copyright owners. The UK is one of few Member States to have availed of this option to date.