Continuing on, thematically, from the previous post, this guest post looks into the question of whether spoofs fall under the fair use exception or not. This is Spadika Jayaraj’s 2nd submission to the 2nd Annual SpicyIP Fellowship applicant series. You can view her first submission here.
To Parody or Not to Parody – Does Bollywood need to lighten up?
AIB is a group of comedians who produce funny content (mainly viral YouTube videos). They have been in the news recently for their latest video which makes a light-hearted dig at YashRaj Cinemas’ supposed lack of sense of humour. The group wanted to make a spoof of the popular Bollywood movie Dhoom. Reportedly, they were denied permission and were asked to “never bring up the topic again”. AIB was forced to take down the video, and YashRaj warned them that they would approach the Anti-Piracy authorities if it was uploaded again.
The question I will be addressing here is- will YashRaj cinemas have a legitimate copyright claim over videos that spoof its work? As a fan of AIB videos, I must admit that I am personally interested in the spoof video going up online again!
The provision of the Copyright Act which applies to Parodies is S.52(1)(a), which deals with fair dealing. S.52(1)(a)(ii) says that an act will not be infringement of copyright if it is a fair dealing of literary, dramatic or musical work for the purpose of criticism or review. Hence, what we see is that fair use will not extend to reproduction of the work, as long as there is an enhancement of the idea behind the work- in the form of criticism or a review. The question here becomes one of degree of similarity between the original and the derivative work. In RG Anand v. M/s Deluxe Films, it was held by the Supreme Court that if the theme is the same, but the subsequent work becomes “completely new”, it would not be copyright infringement.
Along the same lines, in Blackwood and Sons, the Court held that the test for fair dealing would be “substantiality of the quantity and the quality of the matter reproduced.” Here, the Court also added that whether the new work would compete with the original work would also be a factor in deciding whether it is fair use, as the rationale is that one party should not be allowed to make economic benefit out of another party’s work.
Unfortunately, there is no clear definition of “fair use” in Indian jurisprudence, and the Indian courts often rely on U.S. Law. Title 17 of the US Code lays down the following 4 considerations when deciding whether something is fair use:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work
As is evident, the considerations laid down in Title 17 do not offer anything new to the analysis that has already been made by the Indian Courts. However, American Courts have liberally interpreted this provision. In Elsmere Music Inc v. National Broadcasting Co (482 F. Supp. 741 (S.D.N.Y.), a parody of the song ‘I love New York’ on the comedy show Saturday Night Live was held to not infringe copyright because of its comic content- because it did not compete with or detract from the original song. In the famous case Leibowitz v. Paramount Pictures, a film company parodied the iconic photograph of a pregnant Demi Moore, taken by Annie Leibowitz. The Court dismissed the copyright claim over the parody, as the use of the photograph was “transformative” and only the style was imitated for comic effect.
Unfortunately, the parody that AIG uploaded is not available online anymore, so it is impossible to make a determination of whether it substantially copies Dhoom. However, going by the nature of previous AIB videos (and also judging by the average movie parody among the tens of thousands on YouTube), the work is most likely to be transformative in character. Parodies generally only use the theme of the film and the basic storyline in order to transform it into comic content. Further, considering such parodies are short videos which will be up for free viewing on the internet, they are highly unlikely to detract from the profits of YashRaj.
In the year 1996, in the case Civic Chandran, the Kerala High Court held that a “counter drama” (which can be likened to a parody) did not infringe copyright over the original work as the theme, ideology and message behind the work was completely different from that of the original. The same logic can be extended to any potential parody of a YashRaj film as well. It is therefore evident that Indian law on Fair Dealing, although not clear, leaves plenty of room for arguing that a parody will not infringe copyright.
YashRaj’s refusal to allow AIB’s video to be up on the internet has resulted in the group producing a video that makes fun of the refusal itself (we shall have to wait and watch for a defamation suit)- so AIB has made the best of a bad situation. However, the entire incident is a sad case of a giant corporation hindering a creativity by threatening to file a suit against a group of young, talented pranksters, though there seems to be little legal basis to do so. Since Yashraj apparently rejected AIB’s offer to share the profits from the video with them, the Bollywood giant appears to be trying to protect its reputation with the tool of copyright law. If this is not censorship- what is?