For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

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Tuesday, 4 February 2014

Balkan ballyhoo over Ministerial mockery in Serbian satire

Over the decades we have seen and heard so much sad news from the Balkans that some folk might think of the former Yugoslavia as nothing more than a Vale of Tears.  However, this Kat, who has recently returned from an inspiring trip to Belgrade, is heartened to learn that our friends in the region have plenty to laugh about too -- and that there are some keen senses of humour at play, as we discover from Bogdan Ivanišević (Head of IP Practice, BDK Advokati/Attorneys at Law, Belgrade), who has guested us the following tale:

Mockery via use of someone else’s footage: parody or satire, and does the difference matter?

Despite having a name that ends in "-ic",
Vučić 
does not play for any English
Premier League soccer team, notes Merpel
It was a privilege last Saturday (1 February) to know Serbian, or any related language spoken in the territory of the ex-Yugoslavia. This was because the internet was flooded with truly funny and creative user-generated content ridiculing, in real time, the actions of the populist Serbian Deputy Prime Minister Aleksandar Vučić. Vučić visited a site in the north of Serbia where hundreds of motorists and their passengers were stuck in a snow storm, joining the armed forces in the efforts to evacuate them. The Serbian Radio Television (RTS) filmed bare-headed Vučić in action, including when he carried a boy through the deep snow, stumbled, fell, but then stood up again and delivered the boy to another man. Many saw Vučić’s actions as a public relations exercise undertaken with an eye on the parliamentary elections scheduled for mid-March (Vučić’s Serbian Progressive Party, already the dominant partner in the current coalition government, is expected to win most votes.)

Not PTC, but RTS, the
(Cyrillic) Serb TV logo
An anonymous satirist added subtitles to the RTS recording, thus creating a fictitious narrative in which Vučić orders his subordinates to find him a boy “up to 20 kilos”, and five minutes later a boy – a bit heavier than that – is brought from a warm house nearby where he was innocently watching cartoons. The boy’s protestations annoy Vučić greatly. The person to whom Vučić manages to surrender the boy assures the latter that he would not be put in the helicopter and evacuated, because the entire scene is for cameras only, and the cameras would be switched off shortly.

The video was taken down from YouTube because of the alleged infringement of copyright owned by the RTS, only to reappear on other sites later in the day. 

Assuming for the present purpose that the RTS recording is copyright-protected, the question is: did the montage infringe copyright (i.e. the “neighbouring right” of the producer of a videogram, if one uses the categories found in the Serbian copyright law)? It depends on the applicable substantive law — and also on whether the later work is qualified as a satire or parody.

Under the prevailing approach in the US, where YouTube is incorporated, the video would likely be considered a satire, because the copyright work, in this case the original RTS recording, is “a vehicle to poke fun at another target” (as the US Court of Appeals for the Ninth Circuit put it in Dr Seuss Enterprises v Penguin Books USA (1997), here). In the example at hand, the other target is Serbian Deputy PM Vučić. 

In Dr Seuss the Ninth Circuit famously held that, because the defendant’s creation was a satire, not a parody, the defendant was responsible for copyright infringement. The reasoning has been criticized by commentators (including, quite powerfully, by Tyler Ochoa, here). The Ninth Circuit arguably erred because, while relying on the US Supreme Court’s decision in Campbell v Acuff-Rose Music (92-1292), 510 US 569 (1994), it overlooked the part of  Campbell in which the majority stated that the defence of fair use may apply to a satire if
“there is little or no risk of market substitution [of the original work with the later work], whether because of the large extent of transformation of the earlier work, . . . [or] the small extent to which [the later work] borrows from the original.”
In a more recent decision by a leading US court, Blanch v Koons , 467 F.3d 244 (2d Cir. 2006), the Court of Appeals for the Second Circuit found that the use of copyright photograph by  defendant Jeff Koons, although a satire, was fair use, because Koons had a
"genuine creative rationale for borrowing [the plaintiff’s] image, rather than using it merely 'to get attention or to avoid the drudgery in working up something fresh’”.
It is possible, however, that a court in the US would consider that in the satirical video the copied work was also, at least in part, an object of parody. In a parody, the target is the copyright work itself. In this instance, and considering the widely-held belief in Serbia that RTS (the television) serves the interests of Vučić and his party, one could argue that the RTS recording, projecting an image of Vučić as a superhero, is also the object of mockery.

While the status of satire in the US copyright law is not entirely clear, laws in two major jurisdictions – Australia (since 2006) and Canada (since 2012) – explicitly provide that fair dealing for the purpose of parody or satire does not infringe copyright. The lawmakers found it necessary to mention both concepts, presumably because they thought that referring to parody would leave satire unprotected. In the three jurisdictions, use of an original work for the purpose of satire is not enough to shield a defendant from an allegation of infringement. The dealing, i.e. the use, at issue must be “fair”. The more the new work alters the expression, meaning, or message of the original, and the less it hurts the market for the original work, the more likely the use is fair.

While there are hardly any cases in Canada and Australia to have tested the newly-added statutory provisions on satire, it seems likely that the satire directed at Deputy PM Vučić would pass muster. In particular, the video is highly transformative, and it did not the least jeopardise the market for the original work. The same conclusion is likely under the US fair use analysis, especially considering the informational – as opposed to expressive or creative – nature of the copyright work and the noncommercial nature of the new work.

Analysis gets more complicated when placed in the European, and specifically Serbian, context. Laws and jurisprudence in continental jurisdictions that accept parody as a valid defence – either explicitly through statutes (e.g. France, Spain, and Serbia), or through jurisprudence (e.g. Italy) – have very little or nothing to say about satire. As the examples of the US, Canada, and Australia show, there is a relevant legal distinction between the two concepts. 

It therefore remains unclear whether, in Europe, using a copyright work as “a vehicle to poke fun at another target” exempts that use from being an infringement of copyright (curiously, even leading commentaries of copyright provisions in the French IP Code, by Caron, Vivant, Lucas et al.(2011), Gautier, and Sirinelli et al., say precious little about satire.)

Could it be that satire is included in the notion of “parody” so that, other requirements  being met, a satirist does not infringe copyright in the underlying work?  Such conclusion may well follow if one agrees with the use of the term “parody” by Richard Posner, Robert Merges, Michael Spence, or Kris Erickson, Martin Kretschmer and Dinusha Mendis. Posner introduced the notion of “weapon parody” – a parody in which the use of copyright work is a “weapon” to criticize or comment on something else (in contradistinction to a “target parody”, which targets the copyright work as such). Weapon parody, however, is what most other people would call a satire.

The Serbian Copyright Law, in a provision introduced in 2011, says that
“parody or caricature is permissible, provided that it does not and may not create confusion as to the origin of the work” (Art. 54a).
Does this mean that satire is also permitted, because the term “parody” encompasses what Posner et al. would call “weapon parody” (i.e satire)?  The safe response is: we do not know, because there is no case law and no discussion in literature concerning that issue.

Politics may be a game, but IP's for real ...
The general propensity among the Serbian judges to play it safe makes it more likely that they would interpret “parody” restrictively, as Posner’s “target parody”.  A Serbian judge might well argue that in Serbia, just like everywhere else, authoritative non-legal dictionaries make a clear distinction between “parody” on the one hand and “satire” on the other, and that the lawmakers would have included the latter in the law had they wished to do so. However, the creator of the Vučić video montage might conceivably rely on the parody exception even if parody, as used in the Serbian law, is taken in its restrictive meaning. As suggested above, the later audio-visual work could be seen as mockery of the RTS original.

The deputy PM may have realized that the snow storm stunt was not an unqualified success. In the meantime, to minimize damage, he has uploaded the satirical video on to his own Facebook page

2 comments:

Andy J said...

Thanks Bogdan for a comprehensive analysis of the satire/parody issue across a number of jurisdictios. This is highly relevant at a time when the UK is about to bring into law a new fair dealing category for 'caricature, parody or pastiche', but with no mention of satire.

Francis Davey said...

Unfortunately (whether rightly or wrongly) the IPO, who are the office drafting the regulations, feel bound to go no further than the exceptions allowed in the Information Society Directive.

Eg, by amending s30 so that "criticism or review" is qualified by "quotations for..." to follow article 5(3)(d).

"Caricature, parody or pastiche" is simply 5(3)(k). An express reference to "satire" does not appear in INFOSOC.

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