Judicial Evolution of ‘Fair Use’ of Copyrights – In the Context of Parodies – CorpLexia

Court + Bench
Jul 6, 2019
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To parody is to imitate another’s work in order to ridicule or criticize such work. The act of copying may also be the result of reproducing an original work indirectly, which is from a copy thereof. Parody is not possible without reproduction of a certain amount of work from the original published work. Where does an act of parody then violate the rights of the creator and cause copyright infringement?

[Abhishek Iyer is a student of 3rd Year B.A.-LLB at the Gujarat National Law University, Gandhinagar and can be reached at abhishekiyer1999[at]gmail.com]

History of the Creator’s Rights

The first statute that protected the creator’s rights was Britain’s Statute of Anne back in 1710. It gave 14 years of legal protection for the creator. Statute of Anne gave recognition to the author as the foundation head of protection. Copyright protection slowly expanded to other works as well, like performing rights, Sculpture copyright, dramatic copyright, etc. In the international scenario today, treaties and conventions are made for the protection of creators. One of the most prominent treaties that laid the foundation of copyright is the Berne Convention of 1886. In India, copyrights are protected under the Copyright Act, 1957.

Parodies and Copyright Infringement

Parodies and copyright infringement sometimes go hand-in-hand having very minimal to differentiate. Let’s chase the history of Parody work escaping copyright infringement and saved under “Fair use”.

In Otto Eisenchiml v. Fowcett Publications the US Court of Appeals for the Seventh Circuit had observed that “An infringement is not confined to literal and exact repetition or reproduction; it includes also the various modes in which the matter of any work may be adopted, imitated, transferred, or reproduced, with more or less colourable alterations to disguise the piracy.” In a Parody work, there is an imitation of an original work which is further altered with some amusing content.

In Ashdown v. Telegraph (“Telegraph“), a 3-factor test was propounded by the Court of Appeals of England and Wales, which included, a) whether the alleged fair dealing is in commercial competition with the owner’s exploitation or work, (b) whether the work has already been published or otherwise exposed to the public and (c) the amount and importance of the work which has been taken. This judgment truly changed the way copyright was construed as the factor test ensured artistic work shall not be falsely barred from publication.

To clarify with an Indian example, the Kerala High Court in Civic Chandran v. Ammini Amma stated that copying of copyrighted work is permissible if the said work is for a larger public interest. The court also laid down a similar three point test, a) the quantum and value of the matter taken in relation to the comments or criticism; (b) the purpose for which it is taken; and (c) the likelihood of competition between the two works. Moreover, in Pepsi Co v. Hindustan Coca Cola Ltd, the court had stated that colourful imitation of an original copyrighted work was an offence too. The court in this particular case put a restraint on Hindustan Coca Cola Ltd. From using the TV commercial titled “Kyu Dil Maange No More”. This was an imitation of the original work “Yeh Dil Maange More” published and owned by Pepsi Co. Going by the three-point test in Telegraph case, factual circumstances were evaluated and order was passed.

Defence of Fair Use for a Parody

To defend a parody work under “Fair Use” the court in Suntrust Bank v. Houghton, stated that it is important to analyse the purpose and characters of any publication, its nature, the amount and substantiality of the portion of the original being used in that particular publication, and the effect on the market value of the original. The present case was concerned with the publication of a book. On these grounds, a parody may be qualified and not infringing copyrights.


In this complex and competitive world, the Copyright Act takes sufficient care to ensure a parody does not directly affect the original product and such parody limited to the realm of fairness. However, there lies a tiny grey area which separates a parody from a copyright violation. The cases above also highlight an insufficiency of standardised principles on which parodies are to be judged. Thus, a decision regarding parodies is heavily based on the factual matrix of each case.

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