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Parody/Pastiche Issue

 
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jonnypanic2000
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PostPosted: Thu Oct 24, 2013 8:46 pm    Post subject: Parody/Pastiche Issue Reply with quote

Hi, I am planning to self-publish a book and have a couple of questions re. content and possible cover art. I would be very grateful for any advice.

The first issue is within the text, which pastiches several well known TV programmes. The titles of the shows have been slightly altered although their inspirations are obvious, with their formats and typical content (think X Factor style entertainment) pretty much the same. Does this count as derivative work and therefore infringement?

The second issue is regarding artwork. It would involve a parody of an Antony Gormley sculpture. No pre-existing photo would be used. I would be creating and photographing a set of mock ups, one of which would be altered. Is this allowable?

Many thanks again for your attention.
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AndyJ
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PostPosted: Thu Oct 24, 2013 10:09 pm    Post subject: Reply with quote

Hi jonnypanic,
The problem is that at present the law in the UK does not recognise parody or pastiche as an acceptable form of fair dealing, and so as at today the test would be whether your work copied a substantial part of another work. This is about to change as draft regulations (which you can download here in pdf format) are being formulated and should become law before the end of the year.
In the mean time, let's look at whether the things you wish to parody are actually covered by copyright. TV formats are not directly protected under under UK copyright law, although elements of them can be: for instance scripts are literary works, the actual show may be a dramatic or musical work and finally, what actually appears on screen is a performance, all of which have some degree of protection. But it is unlikely that the textual description of a dramatic or musical performance would infringe as long as the spoof version did not rely on copying a substantial part of the original. This is always the problem with parody: it relies on the audience being able to identify the original which is being mocked, without straying over the border between substantial and insubstantial. In the case of a parody of X Factor, there is nothing new in TV talent shows, or rubbish acts being torn to pieces by critical judges. Even mimicking the style of well known judges such as Simon Cowell or Louis Walsh would be acceptable as their utterances are effectively un-scripted (so no literary copyright is involved) and their personality and/or accent etc are not protectable features. A successful parody (ie one that did not infringe) would not be a derivative work, and would be entitled to copyright protection in its own right (in this case as a literary work).
The artwork issue is more difficult. It will certainly be easier to do this once the new parody fair dealing regulation comes in, but at present it is quite difficult to avoid the substantiality test. A large degree of differentiation needs to exist between the original and the parody. This because even when a three-dimensional piece of art is recreated in 2D, it can infringe if a substantial part has been copied. That said, I think that if, for example, you were to make your own version of the Angel of the North out of balsa wood and tissue paper and photograph that, it would be hard to argue this copied a substantial part of the actual sculpture unless the details and proportions in your model closely matched the original. It is perfectly permissible to copy the underlying idea behind a work of art; it's the actual way the original author expresses the idea in a permanent form which gains the copyright protection. For this reason there tends to be slightly more leeway with works of art because it is inherent in nature of art to challenge our perceptions and pre-conceptions. Much will ride on the actual statement that your parody seeks to make about the idea behind Anthony Gormley's work, and the degree to which the parody it makes its point.
I hope this helps.
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jonnypanic2000
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PostPosted: Fri Oct 25, 2013 9:55 pm    Post subject: Reply with quote

Thank you very much for your prompt reply, it was very helpful. I figured that the TV show issue would be more or less ok, I was most concerned that the format of the competitions might be tightly controlled. As I recall, Simon Cowell had to reach a deal over a law suit from his former Pop Idol colleague over The X Factor.
With regards to the artwork, it was actually Gormley's 'Field' piece that I was thinking of. It still feels very tricky - I am guessing that he cannot claim exclusivity to the idea of a very vaguely anthropomorphised clay figurine, but maybe he can to the idea of them pictured en masse.
On another issue, to what extent are the titles of regular publications covered? For example, within the context of a fictional work can you include a fictional article supposedly from the pages of The Guardian or The Spectator?

Many thanks again for your time.
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AndyJ
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PostPosted: Sat Oct 26, 2013 10:05 am    Post subject: Reply with quote

Hi again jonny,
The idea of parodying the Field project would probably be OK as long as it contained a sufficient amount of satire or criticism or poking fun at the original concept to make it clear that your work was not just copying, but making a cheeky or indeed serious statement about what the original stands for (say, a line clay figures queuing outside a Job Centre, referencing Gormley's work, the film The Full Monty and the Conservative Party's election poster from 1979). If you do that then you may also be able to claim protection from liability on the basis of section 30(1):
Quote:
30 Criticism, review and news reporting.
(1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public.
Note that 'criticism' here does not mean negative criticism but 'critical appraisal'.
As for using the titles of the Guardian or The Spectator in a fictional setting, there are no copyright implications and since these are both what one might term institutions, they are probably fair game in the context of other legal protections which are available, such as defamation. This would be a similar situation to using, say, the House of Commons as a setting for some fictional event. However the more specific the reference, the more the risk of defamation may increase. So for instance, do not use the name of any actual journalist or imply that your words formed the editorial (ie the considered opinion of the journal concerned, as opposed to an opinion piece by a freelancer or guest contributor which might well be some distance from the normal ethos or political stance of the publication).
A good way to do this is to look at what has been done before. So, for instance taking my earlier example of a political setting, programmes like The Thick of It or Yes, Minister used fictional names for government Departments and characters, and did not overtly refer to political parties, but nonetheless captured the feel of how we, the public, perceive that government works. In that context it would perfectly OK to have a character who was a Sun journalist in order to send a shorthand message to the audience about what kind of journalism was being referred to. But when the satire or opprobrium is being directed at the journalism itself (as in Evelyn Waugh's Scoop) it would be best to create an entirely fictional title.
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jonnypanic2000
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PostPosted: Tue Oct 29, 2013 9:52 pm    Post subject: Reply with quote

Thanks again for all your help. It certainly is a horribly complex issue.
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Dalinar
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PostPosted: Wed Mar 12, 2014 5:18 pm    Post subject: Reply with quote

Hi,

Apologies for jumping in on this topic but the forum is not letting me created my own thread Embarassed

I have a somewhat similar question:

In regards the new exception for Parody in UK copyright law (which I believe is to come into effect in April), will that technically make parody books which are produced for financial gain legal? E.g. the Barry Trotter books which obviously parody the Harry Potter series. I mention financial gain as I have read conflicting views about what "Fair dealing" means. Some suggest that something created for profit, falls outside of Fair dealing, while others suggest this isnít an issue so I canít seem to find a definitive answer.

The main reason I ask is that some years ago, a friend and I were having a discussion about a particular book and how it would be funny if it were made into a parody. To cut a long story short, I created that book out of boredom but it turned out pretty well and I wouldn't mind trying to see if I could sell it. I would rather not risk a legal battle from something I essentially did as a hobby though so would like some advice as to whether I would be breaking copyright laws or not.

To clarify, what I have tried to parody is the overall theme of the series, along with things like materials, printing style and size to make it reconisable but I have used none of the content from the original books.

Some additional points about the book:

It states clearly on the front cover that it is a parody
The storyline is completely of my own writing
The artwork is all original and drawn by myself

Let me know if i should provide anymore information

Any help/advice would be much appreciated Smile
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AndyJ
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PostPosted: Wed Mar 12, 2014 10:01 pm    Post subject: Reply with quote

Hi Dalinar,
We haven't yet seen the final proposed wording of the secondary legislation which will introduce the new parody exception, but I would very surprised if it was only available where the use was non-commercial in nature; such a thing was not discussed by Parliament when the main Bill (the Enterprise and Regulatory Reform Bill) was debated.

It is true that the Fair Dealing exception for private study and research is limited to non-commercial purposes, but the other exceptions (review, criticism and news reporting) are not limited in this way.

It is also unlikely that the new Regulations will be in force in April*. The draft regulations have yet to be laid before both Houses of Parliament, where they will need to be scrutinised by a committee, and given that Parliament is in recess between 10 and 28 April, I think it unlikely that much will happen before May.

As for whether your book will be covered by the new parody exception, it really is too early to be certain or to offer advice. Much will depend on the reaction of the author or publisher of the original work you have parodied, and whether they will want to test the boundaries of the new legislation. Obviously with time, once the courts have had an opportunity to hear a few cases involving the parody issue, we will be in a clearer position to know where those boundaries lie.

However as the law stands today, ideas alone are not really protected by copyright. It is the expression of the ideas which may not be copied too closely. From what you have told us, it doesn't sound as if your book relies on closely copying the story, characters or artwork of the original, and so once the additional exception for parody is in place, you may well be be able to publish your work without concern.

You mention 'selling' it, by which I assume that you are thinking of self-publishing, rather than trying to get an established publisher to take your work. If that is so, it might be sensible to get legal opinion on the parody aspect before publishing, if you are in any doubt. However if you do get a publisher for your book, they should take care of the 'legalling' for you.

* Afternote: My analysis has been confirmed by David Willetts MP, Minister in the Department of BIS, who told the House of Commons on 12 March "the draft statutory instruments are now being finalised, and we anticipate that they will be laid before Parliament [...] next week.
I fully recognise that laying the draft statutory instruments next week, if we are able to do so, still means that this process will have taken longer than we forecast and expected.
" (Hansard 12 March).
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Dalinar
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PostPosted: Fri Mar 14, 2014 11:32 am    Post subject: Reply with quote

Hi AndyJ,

Thank you for your informed response. Its very much appreciated.

I'll keep looking for updates to this then and hopefully I'll be able to understand the final wording when it comes out Wink

Thanks again
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