Is this kind of parody legal?

'Is it legal', 'can I do this' type questions and discussions.
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JamesPSull
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Is this kind of parody legal?

Post by JamesPSull » Mon Jul 09, 2018 3:11 pm

Hey! I'm currently making a parody show of an animated TV series. The original show's premise is teenagers on a remote island doing challenges each week and eliminating one of their own each week until one only is left standing on the island. Now, the show has its' own host and contestants throughout its' many seasons, but MY parody show has a completely different cast but the same host. I AM using the same theme song of the original show for my show, and I am wondering how legal is that? My show is created by myself - the background, the characters, the animation, the script, and so on, but the style of the show is similar to the original show, as well as containing half of its' name in my show's title.

To summarize, I'm using half the show's title, the host as a character on the show (but it is changeable), the same intro song and an additional musical pieces, all are necessary to the recognizability of my series as a parody of the original. Yet, the entire cast is of my own, as well as music (royalty free), sound effects, background and everything else I haven't mentioned is my creation.

Is that legal? If not, what can I add/subtract from the show to make it legal?

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AndyJ
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Re: Is this kind of parody legal?

Post by AndyJ » Mon Jul 09, 2018 8:17 pm

Hi James,

It is worth mentioning at the outset that there are two different aspects to this: the strictly legal one and the real-world reaction of the owner of the franchise for the original show. Companies like Endemol etc make a great deal of money by licensing the formats they create and consequently they protect their intellectual property with some rigour. If the owner of the show you seek to parody takes the view that you may undermine the value of their format, they will make life difficult for you, with copious lawyer's letters and threats of court action, even though by the letter of the law you may not have infringed anything.

So turning to the law, the first thing to establish is whether your idea is truly a parody. The parody fair dealing exception is fairly new under UK law and as yet we have no cases in which to see how the courts here will assess a parody. The best we have to go on is a case from Belgium which was looked at by the Court of Justice of the European Union, called Deckmyn. The CJEU said that the meaning and scope of parody was to be interpreted uniformly across the whole of the EU (and therefore for the present, the UK courts must apply this meaning), but without spelling out an exact definition. They did however define some of its characteristics: "to evoke an existing work while being noticeably different from it, and secondly to constitute an expression of humour or mockery." The court's judgment then goes on to examine other aspects of the exception for parody, namely that the right to exercise the excepton must not be to the detriment of the original work. The underlying message seems to be that the parody should not damage the original work economically, nor should the parody be so distatseful that it damages the integrity of the original (this was relevant in the Deckmyn case because the parody concerned had racist overtones whereas the original was a popular children's comic book). The court concluded by saying that the national courts must determine the existence or not of parody based on the characcteristics outlined by the CJEU, but in the context of local norms, expecially as to what constituted 'humour'.

We then have to consider the general principles which apply to fair dealing. Obviuosly the word 'fair' incorporates the proportionality aspect which the CJEU examined, but it also includes the idea that no more of the original is used than is strictly necessary for the purpose of the parody. This is where I think your idea may fall down. If this was a one-off sketch lasting, say, 5 minutes or so, then that would allow you to make your humourous or satirical point and move on. But you are proposing a show that will continue for a number of weeks, and, to my mind, this takes you well beyond the fair dealing doctrine. My second concern is that you have not actually described where the comedic or satirical element is in your concept that makes it a parody. Merely switchng aroung a few details would not seem, at first sight, to qualify as a parody or, even if there was enough of a joke in the concept, the joke is over almost immediately, thus the justification for contiuning the show over a number of weeks falls away.

And two final comments: you cannot use the theme tune in its unaltered form. The music is a separate copyright work and even though you may be parodying the original programme, that would not extend the fair dealing exception to the music, unless that too got a parodic treatment. And secondly, you mentioned royalty free music. I hope you understand that royalty free is a kind of one-off, paid-for licence which does not involve the recurring payment of royalties; it doesn't mean 'free'.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

JamesPSull
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Re: Is this kind of parody legal?

Post by JamesPSull » Tue Jul 10, 2018 5:40 am

Thank you very much, Andy, your answer was incredibly helpful and insightful, helped me get to some final decisions. Especially on royalty-free music, I had no idea of its' actual definition.

Thank you again!

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