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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.
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.
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.
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:
The judgment also provides some clear guidance about what won't satisfy these requirements:
The defendants' dining show couldn't rely on the fair dealing parody defence because:
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.
作者 Adam Rendle
作者 Simon Jupp