Satire and Parody are two peculiar terms holding similar meaning yet there is a fine line of distinction between the same. These concepts are recognised as defences under the Fair Dealing concept under the Copyright Act 1957 which is a doctrine seeking to exempt certain actions not amounting to copyright infringements. Both of these terms pertain to criticism, comment or humour of any copyrighted work and hence that is the reason why Indian jurisprudence has treated these terms similarly and protecting the same under the garb of Article 19 of the Constitution of India.
WHAT IS PARODY?
Parody in its original meaning derives its source from the Greek word called “Paroidia” which can be further broken down to “para” meaning beside and “ode” meaning song. For conceptual clarity, the meaning afforded to this concept nowadays is “an imitation of style of a particular writer, artist or genre with a deliberate exaggeration for a comic effect”. For e.g. ‘Gaana Wala Song’ parody of the song ‘Ishqwala Love’.
WHAT IS SATIRE?
Albeit the term Satire has been used conjunctively used with parody under Indian jurisprudence, there is a thin line separating both of these concepts. Satires use the work of someone else to facilitate commentary on some other topic. Satire is not prima facie protected under the Copyright legislation and rules since it does not seek to criticise or comment the copyrighted work but comments on another issue in itself which makes the use of the copyrighted work unnecessary. For e.g. Political Cartoons, TV Night shows (Last Week Tonight) etc.
FINE LINE DISTINCTION
At the outset it is imperative to note that the terms might be similar when considered from the viewpoint of freedom of speech and expression as per Article 19(1)(a) of the Constitution of India, but holds key difference when considered under the Intellectual Property Laws. Judge Souter in the landmark adjudication of Campbell v. Acuff-Rose Music, Inc. held that:
“Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”
Furthermore, the case also makes the distinction by stating that satire targets prevalent follies and vices and attacks them with ridicule, irony, derision, wit or parody, whereas, Parody involves a second work by a different author that imitates the style or characteristics of the author or his work.
COPYRIGHT PROTECTION AFFORDED
At the outset it must be noted that the protection afforded to these concepts is twofold, first being under Article 19(1)(a) of the Indian Constitution which gives the freedom of speech and expression to each any every citizen. This freedom further mandates that a person has a right to criticise or comment on any copyrighted work and the same will in turn help in creating social dialogue amidst the populace. However, this particular reasoning must also be read in consonance with the protection of the copyrighted works of the authors.
The Intellectual Property Law seeks to afford protection to such concepts under the Fair Dealing doctrine which acts as an exception protecting certain acts not amounting to copyright infringements. The IP legislations do not mention these two terms, however the Indian courts through various landmark adjudications have offered a substantial amount of protection to Parodies and ultimately holding them not amounting as copyright infringements.
The Hon’ble Supreme Court in the case of Civic Chandran v Ammini Amma had laid down the infamous “three factor test” in order to consider parody as a copyright infringement or not:
a) The amount and value of the matter copied for the purposes of comment or criticism;
b) The purpose behind taking the same;
c) The likelihood of competition between the works.
This crystal-clear judgment by the apex court comes as an aide to other courts while observing the thin line which safeguards parodies from copyright infringements. Furthermore, the courts have also perused a degree of creativity in the second work which might be a satire or a parody when dealing with the issue of copyright infringements. This means that satire and parodies involving some amount of infusion of creativity for the purposes of criticising and commenting will not be held as infringing the copyright. Hence, the courts will observe as to how much mutilation, changes or level of creativity is used by the person making the parody in order to constitute a copyright infringement.
However, it is must be noted that due to the very reason of a minor difference in satire and parody, makes their protection vary accordingly. Under the US Law as well, satires are not always considered as a fair dealing exception since they target another set of issues and has the capacity of being a standalone work. In lieu of the decision in the Campbell case, the Supreme Court of US has recognised the pertinent difference between satire and parody which is quintessential since this difference determines the protection afforded to Satire under the Copyright law across various jurisdictions worldwide. It is to be noted that satire uses the copyrighted work to target another topic or criticise an altogether different problem faced by the society which raises concerns w.r.t to merely using another’s established success for the satirist’s unfair gain, and thus undeserving of application of the fair use exception.
LOOPHOLES TAKEN BY PARODISTS AND SATIRISTS
The fair use exception has over the years been a long-standing debate and has witnessed various landmark decisions like the Rameshwari Photocopy case and the Blackwood case wherein the courts have liberally interpreted the fair use doctrine and widened the horizon of the same. Since the courts have in most of the cases interpreted the doctrine liberally, parodists and satirist are avoiding the clutches of law. The loopholes these persons have been using can be categorised as:
A) Humour as the object: This is one common defence taken by Parodists and satirists that the copyrighted work being commented or criticised upon is carried out with the intent of humour and comedy. In lieu of the same, such acts are protected under the fair use doctrine further holding that such acts are for entertainment use, however, a pertinent concern which might arise is clearly embark the line between humour and infringement and how much of it can be protected by law.
B) Constitutional Protection: As already mentioned above, parody and satire also fall under the garb of Article 19(1)(a) which seeks to protect freedom of speech and expression. Parodists and Satirists claim such criticism and comments as an inherent fundamental right provided under the constitution. The same can be argued by such persons that Article 19 provides with the right to entertain and to be entertained, albeit, the very fair use doctrine jurisprudence established in India demands prior approval from the copyright owner before using it for entertainment purposes.
C) No commercial use: This is another loophole which acts as one of the determining factor for a parody to be considered as an infringement or not as laid down in the famous Civic Chandran case. If the use of the copyrighted work is not undertaken for commercial or economic benefits, then the act will not be considered as copyright infringement. Hence, any work until unless infusing creativity or new content into the copyrighted work will be amounting to infringement if it is used for commercial benefit. This further substantiates the principle of transformation which was succinctly observed in the R.G Anand case which held that “Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.”
PARODY AND SATIRE ACTIONABLE IN COURT
At the outset, while dealing with the aspect of taking the parodists and satirists to court, a distinction between the protection afforded to the same has to be made which has been clearly established in the initial part of this article. Parodies are not in most of the cases referred to court as being copyright infringements and are protected under the garb of fair use doctrine, whereas, satire is not afforded the same level of protection and would amount to an unfair use of the copyrighted work. In lieu of the same, the courts have recognised certain perennial principles like the “Transformative Principle”, “Economic Use Principle”, “The Line of Creativity principle” and has also laid down multitude factors and tests to determine whether parodies and satires can be considered as copyright infringements or not.
However, the courts have liberally interpreted these concepts when these are made actionable before the courts. The courts have also delved into another precarious issue of the interplay between these acts and the “Right to Publicity”. Right to Publicity is defined as an individual’s right to control and profit from original use of his or her name, likeness or persona. It is to be noted that the courts have observed it is imperative to promote social and political dialogue amidst the populace. On similar lines, the Patna High Court in the case of Shri Ashwani Dhir v. The State of Bihar while observing a parody against Lalu Prasad Yadav the former CM of Bihar, has held that a creative artist must be provided with the freedom to portray the picture of the society, political system or any person involved in politics as long as it does not affect public order, decency or morality.
As seen in Ashutosh Dubey v Netflix
This is a recent decision by the Delhi High Court which was dealing with a subject suit filed by the Plaintiff seeking a permanent injunction against the defendants for airing or streaming of the episodes of Web-Series (TV show) “Hasmukh” particularly Episode 4 of Season 1. It was averred by the plaintiff that the said episode contained certain derogatory remarks against the legal fraternity and such statements must be treated as scandalous. There were certain statements made in the episode which compared thieves with lawyers and further stating that law is dirty.
The Court held that the distinction of humour and defamation wherein the court held that the above-mentioned statements were spoken by the Protagonist while performing on stage as stand-up comedian. The court also observed that“It is a known fact that a stand-up comedian to highlight a particular point exaggerates the same to an extent that it becomes a satire and a comedy. People do not view the comments or jokes made by stand-up comedians as statements of truth but take them with a pinch of salt with the understanding that it is an exaggeration for the purposes of exposing certain ills or shortcomings.”
Further the Court succinctly held that satire is a work of art and one of the techniques involved in doing the same is exaggeration beyond normal bounds so that it becomes ridiculous and faults can be seen. This one of the rare cases where the court has sought to offer protection to satires.
A similar pro satire suit was one of Tata Sons Ltd. v Greenpeace International & Anr.
Therefore we can see that even though there aren’t specific laws for parodies and satirists in the IP Acts, the Courts,, as adjudged on case to case basis, are coming of age and taking into account the true mens rea and outcome of the matter and only then passing a judgement.