Kathy Johns is a member of the KNOWlaw Group of the Toronto law firm of McMillan Binch.

From an unflattering depiction of the ‘Michelin Man’ in Canada, to Leslie Nielsen’s head superimposed on a famous photograph of a pregnant Demi Moore in the u.s., to a spoof of a famous politician’s diary in the u.k., the courts have been kept busy with a flurry of parody cases.

Parody in Canada

Our newspapers, songs, films and television programs are filled with parody. For many writers, producers and publishers, it’s a great vehicle for entertainment or social commentary, and of course, commercial profit.

There are very few Canadian court decisions concerning parodies and whether they constitute copyright infringement. That means that the law in this country is somewhat gray. While British law doesn’t seem to recognize the difference between a parody and an exploitative rip-off, U.S. courts give genuine parody protection as artistic expression within certain limits.

The most recent Canadian case on parody seems to suggest that we are somewhere in the middle.

Parodies are inherently problematic because, as an American court recently recognized, they must often convey two simultaneous and contradictory messages – that the spoof ‘is’ the original, but also that it is not the original and is instead simply a humorous parody. Because the very ‘art of the parody’ involves imitation and, to some extent, reproduction, the issue of copying without permission often arises.

In Canada, the legality of a parody is likely to be analyzed in terms of whether the parody constitutes the reproduction of a ‘substantial’ part of the original work contrary to the Copyright Act. The basic test of whether an infringement has taken place is whether the parody is ‘substantially similar’ to the original.

Although there is little case law in Canada on what constitutes a ‘substantial’ part of a work, it is generally accepted that the issue depends much more on the quality than the quantity of what was reproduced.

One early Canadian case held that the use of between five and 32 bars of music from the song Walkin’ My Baby Back Home constituted the use of a substantial part of the work since the part was recognizable to anyone who was familiar with the work.

Moral rights and parody

Parody writers may face yet another legal challenge in Canada. The Canadian Copyright Act provides authors of works with ‘moral rights’ in their works. Authors have the right to the integrity of their work and therefore, the protection of the courts if they feel their original work has been ‘compromised’ in any way.

So what hope do

parody-makers have?

Freedom of expression is one of the most popular defences put forth by parodists sued for copyright infringement. Their work, they argue, is a form of expression which, as a fundamental right, should not be restricted. This argument, however, has not fared well in the courts.

In a recent u.k. case, Associated Newspapers, publisher of the London Evening Standard, was found liable for copyright infringement after having published a series of articles which ‘spoofed’ the best-selling published diaries of Conservative party politician, Alan Clark.

Clark was successful in his argument that the ‘Alan Clark’s Secret Election Diary’ articles written by journalist Peter Bradshaw and which mimicked his own diaries, were in such a form that a substantial number of readers would attribute authorship of the articles to himself, rather than Bradshaw.

The court agreed and found that the spoofed diaries were ‘falsely attributed’ to Clark, an offense under the u.k. Copyright Act.

While the basic right of the publisher to parody Clark’s diaries was not questioned, the court did state that there is a limitation on the publisher’s freedom in respect of the presentation or packaging of the parody and that the right of the creator of the original work to object to false attribution of authorship must be respected.

In a recent Canadian case involving the ‘Michelin Man,’ Michelin sued the Canadian Auto Workers for a pamphlet they had distributed which depicted the famous marshmallow-like Bibendum figure about to stomp on the head of a much smaller worker.

The court in that case also rejected the argument that the politically charged spoof should be a protected form of expression under the Charter, stating that the caw could not appropriate the private property of Michelin – the ‘Bidendum’ copyright – as a vehicle for conveying their anti-Michelin message. Freedom of expression, the court held, is not an absolute value.

In another earlier Canadian trademarks case, the makers of ‘Pierre-Eh,’ an obvious parody of the popular Perrier mineral water, also attempted to argue that their parody should be protected as a form of free speech. The court, however, disagreed and held that freedom of expression does ‘not afford a licence to impair the business integrity of the owner of the marks merely to accommodate the creation of a spoof.’

Fair dealing and fair

use defence

Canadian copyright law does provide a defence for ‘fair dealing’ – you can use any work for the purpose of private study, research, criticism, review, or newspaper summary.

Canadian courts, however, have tended to interpret the fair-dealing provision quite strictly. Any parodist which has taken a fair portion of an original work in creating their satire may have a difficult uphill challenge in convincing the court that it should be protected as a valid form of ‘criticism’ under the Copyright Act.

In fact, the federal court in the Michelin case expressly stated that under Canadian copyright law, ‘criticism’ is not synonymous with parody and does not therefore exist as an exception to copyright infringement.

American courts appear to give parodists more leeway. They have acknowledged that under the u.s. ‘fair use’ defense, parodists may criticize and comment another’s copyrighted work and will generally only lose protection if more of the work is used than is necessary to recall or ‘conjure up’ the object of the satire.

Paramount Pictures was recently sued for its advertisement for Naked Gun: The Final Insult 33 1/3 by celebrity photographer Annie Liebovitz for copyright infringement. Liebovitz claimed that Paramount had infringed the copyright to her famous nude shot of a pregnant Demi Moore, which appeared on the August 1991 cover of Vanity Fair. Paramount’s ad featured a photo of actor Leslie Nielsen’s head superimposed on the naked body of a pregnant model and was posed in a position similar to Moore’s.

Paramount agreed that it had copied Liebovitz’s photo, and that its ad was so similar to the Vanity Fair photo that it could avoid liability only if its ad was a ‘fair use.’

Liebovitz lost at trial and argued on appeal that because the studio’s use was commercial, it should receive little protection under the fair use doctrine.

The Court of Appeals disagreed with her and ruled in Paramount’s favor. The judge held that although in the past American courts had tended to view commercial uses as presumptively unfair, the position is now that commercial uses merely tend to weigh against fair use.

The Paramount decision follows the reasoning in the 2 Live Crew case in which Roy Orbison’s publisher sued the rap music group, alleging that their Pretty Woman recording infringed the copyright to Orbison’s ballad. The music publisher argued that the commercial nature of the 2 Live Crew parody made it presumptively unfair.

The Court of Appeals agreed, but its decision was reversed by the Supreme Court, which held that a work’s commercial nature is only one element of the enquiry into the purpose and character of a parody.

The commercial aspect of parodies is what most often means legal headaches for filmmakers, broadcasters and publishers.

Although the decision in the Paramount case seems to indicate a shift in the u.s. judicial thinking about the extent to which the commercial nature of a parody should be a primary factor in determining its level of protection, the law in Canada remains unclear.

The prudent parodist should therefore still be wary of copying protected works for solely commercial purposes. Although writers may believe their satires are witty, creative, and entertaining, the owner of the original may not be quite so amused.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice on any particular situation.)