Art law News United Kingdom

Seeing the funny side

A change in UK law will allow artists to use copyrighted material for parody

Nadia Plesner's Darfurnica, 2010

The UK will officially gain a sense of humour on 6 April when a new exception allowing artists to use copyrighted material for the purposes of parody, caricature or pastiche is due to pass into law. While parody and satire have been features of British art for several centuries, from William Hogarth’s political prints to Steve Bell’s cartoons for the Guardian newspaper, the British government has not kept pace—unlike its French, German, Dutch, Australian, Canadian and American counterparts, which have all implemented parody exceptions to their laws.

The new UK regulations say that works of parody may incorporate elements of the original work; the argument is that the object of parody must be recognised for the joke to succeed. This seemingly contradicts the basis of UK copyright law, which prevents taking “the whole or any substantial part” of a work. However, under the changed legislation artists will be exempt provided their work can be categorised as fair dealing.

The economic benefits of parody are not to be underestimated. In his review of intellectual property in 2011, the leading journalism academic Ian Hargreaves recognised that “comedy is big business” and that video parody on social media platforms such as YouTube “encourages literacy in multi-media expression in ways that are increasingly essential to the economy”. Culturally too, the new regulations will give artists greater freedoms. “It will look like you’ve had a sense of humour failure if you sue an artist for parody,” says Charles Swan, an intellectual property lawyer and partner at Swan Turton.

However, Louis Vuitton wasn’t smiling when it sued the Danish artist Nadia Plesner in 2010 for depicting in her oil painting Darfurnica an emaciated child from Darfur holding one of its handbags. The luxury brand sued Plesner for infringing the copyright of its multi-coloured “Audra” bag, but the artist counter-sued and eventually won in the District Court of The Hague (at the time, the artist was studying in the Netherlands).

Plesner’s case was one of the first to use parody as a defence against copyright infringement in the Netherlands. The artist welcomes the change to UK law. “Humour is a great way to open up dialogues. It is far better than taking a depressing attitude,” she says. “My painting was a comment on the way the mass media operates. When Britney Spears shaved her head, there were helicopters circling her house, it was front-page news. But when there is genocide in Darfur, it is forgotten and not reported.”

The EU published a directive on copyright in 2001, which included a provision for caricature, parody or pastiche. The UK’s implementation of the exemption is part of a drive to harmonise intellectual property laws across Europe, so that access to digital works and remuneration, for example, are consistent. But the concept of a single policy throughout the EU is dividing opinion, with politicians from Iceland and Sweden urging member states to respond to a consultation on copyright reform launched by the European Commission, which closes on 5 February.

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17 Feb 14
17:35 CET


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