New UK Copyright Exception Allows Mashups -- But Only If Judges Think They Are Funny

from the you-must-be-joking dept

Wed, Oct 1st 2014 8:14am — Glyn Moody

Five years ago, Techdirt reported that a request to the UK government to provide a copyright exception for mashups was rejected. Since then, we've been reporting on the UK's very slow progress in updating its copyright laws by bringing in various changes and exceptions. An article in the Daily Telegraph points out that there is a big problem with the new exception for parody, caricature or pastiche (found via @copyrightgirl): Under a new exception to the Copyright, Designs and Patents Act 1998, which comes into force on Wednesday, people will be allowed to re-use copyright material "for the purposes of parody, caricature or pastiche" without having to ask permission of the original author first.

There is an important caveat. If a parodist is taken to court, it will be up to a judge to decide whether the disputed parody is sufficiently funny.
A document from the UK government explains (pdf): In broad terms, parody imitates a work for humorous or satirical effect, commenting on the original work, its subject, author, style, or some other target.
Leaving aside the fact that judges tend to be somewhat advanced in years, and are therefore likely to have a very different idea from young creative artists of what "funny" means, there is also the point that this narrow definition excludes a huge class of mashups that aren't even intended to be funny, just creative. As Mike pointed out recently in his article on Kutiman, it's all too easy for this brilliant use of elements taken from elsewhere to be seen as "infringing." The fact that the UK's exceptions do not permit such kinds of originality shows how much its new copyright is still stuck in the past.

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Filed Under: copyright, free speech, humor, judges, mashups, parody, uk

23 Comments

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Ninja (profile), 1 Oct 2014 @ 7:05am

it will be up to a judge to decide whether the disputed parody is sufficiently funny

A British judging if something is funny? Then this new exception allows precisely zero mashups :/

In a more serious comment would it be possible to use the subjective nature of 'funny' as a defense to request other judges to check it?
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- Richard (profile), 1 Oct 2014 @ 9:03am
  
  Re:
  A British judging if something is funny?
  I don't think it is actually required to succeed in being funny, it only has to be clearly intended to be funny - and hence not a competitor for the original.
  
  Also note that this actually seems to go beyond US style fair use in that it allows satire (the appropriation of a work to poke fun at "some other target") as opposed to just parody - which strictly has to be a parody of the work itself.
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  - Aaron Wolf (profile), 2 Oct 2014 @ 9:02pm
    
    Re: Re:
    The MAD Magazine ruling, the original Supreme Court precedent on parody does NOT say that the satire has to poke fun at the work itself. Your statements about US fair use are simply incorrect.
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    - John Fenderson (profile), 3 Oct 2014 @ 8:15am
      
      Re: Re: Re:
      Technically and legally (in the US), "satire" is when you're using a work to comment on something outside of the work and "parody" is when you're using the work to comment on the original work itself.
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- tqk (profile), 1 Oct 2014 @ 11:43am
  
  Re:
  A British judging if something is funny?
  
  I've just reported you to The Spanish Inquisition. Bet ya didn't see that one coming.
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- G Thompson (profile), 1 Oct 2014 @ 10:08pm
  
  Re:
  To be fair the British are renowned for comedies that use parodies and satire to be funny, though it's less slapstick then the USA likes sometimes.
  
  eg: Monty Python, Blackadder, Yes Minister, The Young Ones, The IT Crowd, Inbetweeners, Red Dwarf
  
  The list is HUGE!
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Vidiot (profile), 1 Oct 2014 @ 7:27am

TV writers, take note
This could have served as the plot of several old "Rumpole of the Bailey" episodes. And may still surface as a ripped-from-the-headlines potboiler on "Law and Order UK".
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Shill on duty, 1 Oct 2014 @ 8:20am

"updating its copyright laws" only has one meaning. Expand and extend them. When something is about to enter the public domain then the law needs to be 'updated' to prevent that from happening.
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John Fenderson (profile), 1 Oct 2014 @ 8:26am

What does funny have to do with it?
While most parodies are comedic, being funny isn't part of the definition of parody. A parody can be the exact opposite of funny and still be parody.
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- PaulT (profile), 1 Oct 2014 @ 8:40am
  
  Re: What does funny have to do with it?
  Also, the humour in many parodies intended as such depends on the viewer's familiarity with the subject being parodied. What are the chances of the chosen judge being familiar enough to understand the joke, even if fans of the subject find it hilarious?
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- Anonymous Coward, 1 Oct 2014 @ 7:31pm
  
  Re: What does funny have to do with it?
  Funny is subjective and judges are biased.
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Anonymous Coward, 1 Oct 2014 @ 8:38am

If a parodist is taken to court, it will be up to a judge to decide whether the disputed parody is sufficiently funny.

Who will be the first copyright owner to appeal a decision that went against them, on the grounds that the Judge was much too easily amused?
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Michael, 1 Oct 2014 @ 8:49am

Ironic
This parody of a real law isn't very funny.
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David Post, 1 Oct 2014 @ 9:00am

funny parodies
I read this statute and the government's description and there's nothing about judges deciding whether parodies are "funny". Not sure there's anything here.
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Retsibsi (profile), 1 Oct 2014 @ 9:16am

I rather think that's the Daily Telegraph's "take" on trying to make something into a news story. Contrary to the general public's view (or what the papers would have us believe is their view) is that judges certainly have a sense of humour (and yes, I do happen to know a number) but it's hardly politic for them to exercise humour in court.
I really do doubt any judge would expect, or wish, to set themselves up as humour critics. I rather think the only issue they would be prepared to decide would be one of whether or not humour was the intent of the mashup / parody / etc
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Crazy Canuck, 1 Oct 2014 @ 9:35am

*First thing to pop into my mind*

Allow me to introduce myself. I'm Inspector Fox of the Light Entertainment Police, Comedy Division, Special Flying Squad. I'm charging you two under Section 21 of the Strange Sketch Act. You are hereby charged that you did willfully take part in a strange sketch, that is, a skit, spoof or humorous vignette of an unconventional nature with intent to cause grievous mental confusion to the Great British Public.
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Anonymous Coward, 1 Oct 2014 @ 10:39am

Let's say a mashup involving a politician is made.

The judge finds it funny...

...until there's a few kickbacks.
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Anonymous Coward, 1 Oct 2014 @ 10:42am

Also, I said this previously on an article on Torrentfreak:

Those who think the courts should have a decision on if something is illegal (e.g. images, websites, or in this case, parodies) is an incredible irrational and misguided view.
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orbitalinsertion (profile), 1 Oct 2014 @ 10:57am

Funny:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the [work] involved in this case is not that.

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Anonymous Coward, 1 Oct 2014 @ 11:00am

Simple enough, ask for a jewish judge.

All rise for the Honorable Mel Brooks....
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radarmonkey (profile), 1 Oct 2014 @ 11:37am

Dear FSM, where is Monty Python when we really need them?
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Anonymous Coward, 1 Oct 2014 @ 2:41pm

The judge is judging if the intention is humour. Not that is sufficiently funny.

This kind of article is what you get when you quote a random twitter account and the opinions of a newspaper as fact.
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- Anonymous Coward, 1 Oct 2014 @ 11:25pm
  
  Re:
  Ah, I see, the judge is deciding if it is humorous, not whether it is funny.
  
  It totally makes sense now. Carry on, nothing to see here.
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