Parodies and advertising: avoiding copyright infringement

Parody and advertising have a long and humorous relationship. But, until earlier this year, there had been little specific guidance from English courts about when humour turns into copyright infringement. We now we have that guidance, and this note summarises what it may mean.

Copyright students of a certain vintage will surely be seriously familiar with the infamous parody of Annie Leibovitz's iconic photograph of a heavily pregnant Demi Moore advertising the film Naked Gun 33 1/3, featuring a 'heavily pregnant' Leslie Nielsen. US courts found that ad not to infringe copyright. They will also be familiar with the There Is Nothin' Like a Dame English case in the mid-1980s, when an attempted "affectionate parody" of the Rodgers and Hammerstein classic in a National Express ad was injuncted for infringing copyright in the music.

We've had to wait 35 years for the next English case to consider parody and advertising, and this too involved another iconic property, Only Fools and Horses. While it wasn't about an ad, the judgment provides important practical guidance on what ad creatives will need to do if they want to make a successful parody ad. And, for these purposes, "successful" means one that doesn't infringe copyright.

The facts

Only Fools and Horses, for those who don't know, is one of the most well-known and well-loved British TV comedy series, featuring two brothers, their other halves and senior relatives, who lived together in a council block in south London and traded their way through many entertaining capers. It ran from 1981 to 1991, with regular repeats and Christmas specials and, in 2019, a musical based on the show opened in London.

The defendants developed an interactive dining show using the characters from the show, known as "Only Fools The (cushty) Dining Experience", and featuring the appearance, mannerisms, voices, catchphrases, backstories and relationships of six of the key characters. The characters were presented in a live interactive pub quiz, which had not appeared in the TV show. It came out during the litigation that the dining show was created with the aim of giving the audience the feeling that they were meeting the characters from the TV show, rather than just using its style. There was evidence that the defendants wanted to produce a "pitch perfect" tribute or homage to the show in which the characters had to "ring true" for the audience.

Copyright in characters

In a novel but unsurprising decision, the court found that copyright subsisted in the Del Boy character in Only Fools and Horses and that that copyright was infringed.

So the first lesson for advertisers who are taking inspiration from, or seeking to emulate, well known TV shows, films, books or other creative works, is to tread carefully as to how much of that source material they adopt. For example, while an advertiser may have secured an appearance from a famous actor, they may not have licensed the rights to the characters or shows which made them famous. In those cases, while it may be possible to pay a distant homage, or knowing wink, to that character/show, replicating detailed elements of them may be going too far.

May a defence apply?

If a proposed ad takes "too much" (i.e. a substantial part) of its source material, we often hear that it's OK because it's funny or meant to be a parody. The defendants in this case said something similar, arguing that their use of the characters fell within the fair dealing defence of parody. However, just because something is funny isn't enough to make it a parody. In the UK, a user of a substantial part of a copyright work would have to comply with some strict requirements about what is a "parody" and what is "fair dealing".

A successful parody would need to:

Be an expression of opinion through the medium of humour or mockery, evoking the source material but being noticeably different from it. Adverts may need to work hard to show that they are an opinion, as opposed to just a promotion. They also need to ensure that they are not a replica of the original. There needs to be some critical distance between the two eg through criticising or mocking the original or commenting on social practices. It will be more difficult to parody a comedy than a serious work.
Actually be for the purpose of parody, rather than simply for advertising. This makes things difficult for an advertiser seeking to rely on the exception, as advertising the brand will normally be the predominant purpose and it may be that the parody/caricature is just an added element to try and make the ad funny.
Be different enough to the copyright work not to replace demand for it. This is possible in adverts, given the very different promotional context the work would be used in.
Take only a limited amount of the source material eg a few lines or small fragments.

The judgment also provides some clear guidance about what won't satisfy these requirements:

Mere imitation isn't enough. Taking the funny elements of the copyright work and merely putting them in a different context would imitate but not parody.
Usage which would compete with ordinary licensing of the copyright work. For example, it would be difficult for an advertiser to use a musical work in an ad without a licence on the basis of parody, including because of the well-developed market for music synch licensing.
Usage which takes so much of the copyright work that the old work is outweighed by the new contribution. For example, using a close replica of a setting or episode and only a little bit of content tailored to the advertiser is unlikely to be permitted.
Adapting a copyright work to put it in a different context.

The defendants' dining show couldn't rely on the fair dealing parody defence because:

It wasn't an expression of humour about the TV programme or anything else. It was funny because the borrowed material was funny.
There was no intention to mock the TV programme or critically engage with it, situation comedy generally or anything else.
The characters from the TV programme were lifted wholesale, along with their language, jokes and backstories.
It didn't target the TV programme or use it to express humour about it or mock it, or anything else.
There was no noticeable difference from the TV programme; it felt like being in a live episode.

This sort of usage of source material as inspiration, tribute and/or imitation, without more, is unlikely to qualify for the defence.

This case is an important lesson to would-be parodists in advertising: being funny isn't enough, they can't take too much, they have to express an opinion, there has to be distance between the ad and the source material, and the usage can't compete with the source.