Last week the Copyright (Parody and Satire) Amendment Bill passed its first reading with near unanimous support, meaning that a long sought after law change may finally come to pass.
A member’s Bill in the name of Kahurangi Carter, it is the latest effort — previous attempts have come from both sides of the House — to offer artist’s protection if they respectfully borrow someone else’s work for the intention of making fun of someone, or for humorous purposes.
As the law stands, creative endeavours — be they songs, poems, scripts or artworks — are covered by copyright. That, quite rightly, protects the rights of the creator of the original work from having it reused or reproduced elsewhere without permission, or a due royalty being paid.
To give some local examples from the world of music, songs such as Stole My Car (a reworking of OMC’s How Bizarre), My Old Man’s An All Black (a rewrite by the Howard Morrison Quartet of Lonnie Donegan’s My Old Man’s A Dustman) and The Fridge (a parody of the Deane Waretini hit The Bridge).
Theoretically, any of those songs — and there have been many, many other examples of parodies, spanning many artforms — could have resulted in legal action for breach of copyright.
New Zealand’s lack of case law on this issue is likely due to the fact that few artists have the resources to hire a lawyer for a court case which could take months, if not years, to reach its conclusion.
However, that does not mean that the possibility does not exist. More likely such disputes have been settled quietly outside of court, or alternatively artists hoping to parody someone’s work have been advised that would fail to find favour with the artist concerned.
There is not much case law overseas either, as many countries already have a provision in their law similar to that which Ms Carter is trying to introduce. What cases there are suggest that a parody would need to have been obviously created for humorous purposes rather than to criticise or insult the holder of the copyright.
In the United States some artists, such as Weird Al Jankovic, have based their entire careers on parodying other people’s songs. Case law there suggests that there is a fine line to be walked between the individual creating the parody or satire demonstrating their own creativity, or simply reaping rewards from the creativity of others.
What the Bill intends to do is allow what is called a ‘‘fair dealing’’ exemption to copyright law for parody and satire. Some such exemptions already exist for specific purposes — such as for the media to quote from a book or reprint a photo with a review, or for schools and universities for educational purposes.
While fair dealing or fair use is a legally known and understood tool, in the context of parody and satire several questions arise.
While each case would depend on its individual facts, there is plenty of leeway for argument about the word ‘‘fair’’ and if the use of someone else’s creativity met that description.
Likewise, the Bill does not offer a definition of ‘‘parody’’ or ‘‘satire’’, and judges will probably need some guidance from Parliament as to what it thinks might be fair game and what might not.
An obvious example is the memes which clog up many a social media feed. Often they reuse copyright material, and often it is done for political purposes. Is that satire, parody, or something more troubling?
The initial debate on Ms Carter’s Bill centred on the right to freedom of expression and, if passed, it will offer important protection of that right.
All well and good but, as the sole dissenting party, New Zealand First, rightly pointed out, the moral rights of the original artist are also worthy of strong protection.
More widely, everyone has the right to freedom from discrimination, and to manifest their beliefs. A cruel satire or parody could well bring various rights into conflict and raise questions regarding justifiable limits being placed on the right to express oneself through parody. Context, as is so often the case, will likely be the decider should any case ever get that far.
The Bill is a useful starting point for a debate, but much work is needed before it becomes the law.
