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Rise in copyright disputes likely following new European court ruling

Judges will be asked to decide whether new creative arts are "funny"

4 September 2014

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The European Court of Justice (ECJ) has issued its ruling that leaves the door open for the UK creative industries and publishers to parody work previously protected by copyright.

Lawyers at RPC have warned that the parody exception to copyright in Deckmyn v Vandersteen will affect films, TV programmes, books, songs, plays and/or computer games.

Paul Joseph, a partner at RPC said: "The European Court has left the door open for the UK's creative industries to borrow from the vast library of copyrighted works to make new works that parody the original. TV viewers should expect an explosion in new programmes using parody in the coming years."

He continued: "Creative works that make the zeitgeist, like Star Wars, Lord of the Rings, and Breaking Bad are likely to be a hugely popular source of further parody, for everyone from advertisers to TV and computer game production companies."

RPC senior associate, Ciara Cullen, added: "This is going to be a very useful tool for the advertising industry, as businesses use the new parody exception to have a fun dig at rivals by parodying their advertising campaigns."

Cullen believes that the new parody rules are likely to lead to an increase in copyright disputes as content owners test the limits of what constitutes a parody under the rules: "We would expect more copyright disputes and litigation in the short term as the courts clear up the grey areas, like what will constitute fair dealing of the original work and whether the parody is actually funny."

Joseph and Cullen highlight that the fact that the UK's exception for parody comes into force on 1 October 2014. The ECJ ruling means that anyone will be now be able to parody a copyrighted work if it evokes the original work; is noticeably different from the original work; is humorous; and that there is a fair balance to how the parody is used.

Examples of how the parody exception might be used in the UK include businesses mocking rivals in their adverts by parodying advertising campaigns or TV production companies and broadcasters able to make programmes mocking any films, TV or other copyrighted content.

Computer game publishers could produce games that parody popular TV programmes or films. Theatre production companies could parody plays of contemporary books, films or other plays. And musicians may produce songs that parody the work of other musicians.

Joseph added: "A key requirement for a publisher to claim that the parody exception protects their use of someone else's copyright is that the new work is funny. This means that UK judges will be asked to decide whether new creative arts are funny. If the judge isn't laughing, the creator of the new work may end up on the losing side of a copyright infringement case."

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