The term parody refers to a work often used to ridicule, criticize or mock an original work. Although it is often confused with satire due to the lack of jurisprudence in Indian law. The US courts[1] have made a clear-cut distinction between the two. A parody is a work that is based upon an original work to criticize or ridicule aspects of the original, while a satire is a work that is based on the usage of wit and irony to bring out contrast on general themes. For this reason, while a parody can be protected against copyright law as it is supposed to add a layer of work to the original work, on the other hand satire cannot take any defense and a satirist has to explain and justify each element borrowed from an original art form.
The Indian law is not just grey on the distinction between satire and parody to an effect that it considers both as same and decides on a case-to-case basis, but it also lacks a direct statutory provision dealing with parodies directly and is therefore based on judgments of the courts. Tests like the four-factor tests[2]in USA are absent from the Indian showcase. The discourse, debates, and precedence on the potential role of “freedom of speech and expression” under Article 19 of the Constitution and its interplay with parody is also not well delved upon in our country.
The general notion regarding an instance involving a parody and copyrights infringement is that parodies are protected under the doctrine of “fair use” as given under Section 52 of the Copyright Act 1957. The arguments arise due to the open-ended nature of the term fair use which has to be interpreted individually. Furthermore, the moral rights (Section 57 of the Act) like. right against any act of distortion, mutilation, modification, or untoward act done to an author’s original work, over a copyrighted work are put into perspective, as no owner would give allowance to use his/her work, that too for criticism nonetheless. But that being said the general view accepted can be understood by Civic Chandran v. Ammini Amma[3] case of Kerela High Court, wherein emphasis by the Hon’ble Court lay upon the intention of creation of parody. Meaning whereby a critique of a work by the means of a critical criticism or critical ridicule can be established clearly by a parodist, they can claim the defense of fair use against the copyright infringement. Moreover, the court also laid emphasis on the nature of both the works, which means if both the works revolve around similar themes (which is the case with parodies), then events and incidents are bound to be similar and hence would not constitute an infringement.
Although the ground to make use of the defense of fair use is well established, i.e., to prove a critical imitation, but there is still a lack of jurisprudential clarity on how to prove the critical imitation and how is it different from a blatant imitation. Therefore, while the “what” is answered, the “how” part of the riddle remains yet to be answered.
To summarise, today, a parodist who establishes a degree of critique to his parody work, in terms of criticism, mockery or ridicule or any other form, and can therefore show that the work is not a blatant imitation for the sake of it, can be protected under “fair use”. Otherwise, any other work whether falling into the category of satire or not would be in infringement of rights of copyright.
By
Ranjul Malik
Army Institute of Law, Mohali.
1st Year Student
[1] Campbell v. Acuff-Rose Music, Inc 510 U.S. 569 (1994).
[2] Folsom v. Marsh, 9 F Cas 342 (1841).
[3] Civic Chandran v. Ammini Amma, 16 PTC 329 (Ker) (1996)