The limit of humour: parody in the audiovisual sector

Patricia Mariscal, lawyer at Bardají&Honrado, reflects on the limits of humour and its legal reality through this Tribune.

The conjunction between humor and criticism is a magnificent incentive for the creativity. When that creativity gives rise to a Comic creation that has as its target of criticism one or more previous works, we speak of parody.

The audiovisual has always been a Very prolific sector as far as parodic creations are concerned. How many films are authentic parodies of previous ones or even of an entire film genre. The Spoof movies they feed on the success of previous works while taking advantage of the weariness that, on occasion, generates the massive proliferation of audiovisual works around the same theme. Land as you can (1980) or Top Secret (1984) are a good example of this. It is precisely the rise of films about air disasters and about spies of the Second World War in the previous years that led to The success of these two references of cinematographic parody. Since No genre has managed to escape parody. To mention just a few of the best known: in the year 2000 Scary movie came to openly mock horror films and especially Scream (1996), and a few years later it was the turn of romantic comedy with Date movie (2006). Also some of the most popular film sagas, such as Star Wars or Twilight they have been the object of ridicule, although the result has not always been the best of the possible. And the fact is that the blockbusters are cannon fodder for parody.

But What does the Law say about parody? Can I appropriate any previous work as long as I modify it minimally and add a touch of humor? What other requirements must be met for a parody to be lawful?

Let's start with the basics: the meaning of parody.

Spanish law does not contain a definition of parody, so that the meaning that this term has in ordinary language must be taken. The dictionary of the RAE defines it as "burlesque imitation", a definition that, although brief, contains the three fundamental elements of this figure: imitation (in reality, transformation) of something previous, and the mockery, a term that in turn encompasses the criticism and the humorous character.

Obviously, the Intellectual Property Law refers to the parody of works, so that humorous imitations of other elements outside intellectual property (for example, of the statements of a public figure) would be excluded from this problem, without prejudice to the implications that a parody of this type could have from the point of view of image rights or the right to honor. The same happens when what is parodied is determined Historical events, such as, for example, occurs in Brian's Life (1979).

On the other hand, when the Law speaks of parody of previous works, it refers to Concrete works, so that the parody of an entire genre without taking or referring to specific and recognizable elements (dialogues, characters...) from previous works does not pose any problem from the point of view of intellectual property.

Why is parody allowed?

The parody is a exception to copyright, which means that the general rule is that in order to transform (i.e. to modify a work with a creative result) you have to ask for Consent to the author. The justification for this limit is in the promotion of criticism and its free expression. Precisely because the author of the parodied work he would never lend himself to authorizing the satire of his work, what is permitted by law is what de facto it already happens. That is why it is a fundamental element of this limit to copyright the existence of a critical message which is projected onto one or more previous works.

However, sometimes pre-existing works are used to parody or caricature people, events or situations that have nothing to do with the parodied play. It is what the Anglo-Saxons call "Weapon parody", as opposed to "Target parody", which is the typical case provided for in our Law. A case of Weapon parody it could be that of the Deepfakes that have become so viral in our country and that consist of replacing the faces of actors of Emblematic works (The A-Team and Austin Powers, among others) by those of Public figures (usually politicians). In these cases, the mockery is not directed at the audiovisual works but at the real characters who caricature.

It is debatable that in these cases the transformation of the previous work is covered by the limit of parody, but in recent years the courts seem to be have accepted the lawfulness of this case. The judgment of the Court of Justice of the European Union of 3 September 2014 (case c-201/13; Deckym) in which it was considered to be covered by the parody limit the transformation of the cover of a well-known Belgian comic By Wilde Weldoener ("The Compulsive Benefactor") for political purposes. In that case, the defendant had taken the original cover in which a character appeared throwing coins into a crowd from above, replacing his face with that of the mayor of Ghent and introducing black characters in burqas. The Court did not consider it an obstacle to the application of the parody exception that the subject of the burlesque criticism was a reality totally unrelated to the parodied work, since it was clear that the defendant had no intention of parodying the original cartoon, but of ridiculing the immigration policy of the Mayor of Ghent.

Other requirements that parody must meet in order to be lawful

Although the criticism is not directed at the parodied work but at an alien reality, what is clear is that the burlesque or humorous transformation must be projected onto the protected work that is "borrowed". In other words, the parody limit does not cover the use of works that, without being transformed, are included within others that do have a comic or parodic character, nor does it protect the use of works within a context of humor without a parodic transformation taking place on them.

This is what happened, for example, with the film Have a good trip, Your Excellency! (2003), a parody of the last days of the General Frank. In two scenes of the film, a few seconds of the musical work were introduced Face to the sun without, apparently, having asked permission from the holders. They sued and the matter reached the Provincial Court of Barcelona (Judgment of November 23, 2018). The defense focused on arguing the parodic nature of the audiovisual work, which exempted the authors of the music from requesting any authorization. The court did not accept this argument and considered that The use of music was not covered by the limit of parody for, although it was true that it was a parodic cinematographic work, the parodic character did not necessarily radiate to the musical work, which was reproduced as it is.

On the other hand, the fact that the transformation of the original work is required it does not mean that all the elements that compose it have to be modified. For example, in parodic dubbing, the only thing that is modified are the dialogues, the rest of the elements of the audiovisual work remaining unaltered. Something similar happens when the lyrics of a song are changed while keeping the music, which, by the way, was accepted as Legitimate parody by our Courts in the past. The typical case is that of a scene in a movie, a series or even an advertisement in which the Original Dialogues are replaced by others who, being completely alien to the scene being depicted and to the characters, produce a comic effect because of absurdity.

In close relation to the previous requirement, parody must be clearly differentiated from parodied work so that the public does not confuse one with the other. If the parody is well done, confusion will never occur, because what is involved is to generate a humorous contrast with the parodied work.

Finally, Article 39 of the Intellectual Property Law requires, for the application of the limit, that no damage is inferred to the original work or its author. This requirement of our Law is somewhat ironic when the essence of parody is precisely his burlesque mood. That requirement must therefore be interpreted as meaning that the parody must not prejudice the normal exploitation of the parodied work. Again, a good parody is hardly going to take market share away from the parodied work. And probably not if the parody is bad.

And what about pastiche?

The latest reform of the Intellectual Property Law has introduced into our legal system the Figure of the pastiche. It is defined as "the transformation of a disclosed work that consists of taking certain characteristic elements of an artist's work and combining them, in such a way that they give the impression of being an independent creation”.

The precept says nothing about the intention and/or humorous or burlesque result of this figure, although it seems that the intention of the legislator has been to provide At the traditional limit of parody: a new digital dimension. Specifically, as can be seen from the Explanatory Memorandum of Royal Decree-Law 24/2021, it is a matter of giving legal cover for the well-known "memes", so that their dissemination and viralization are minimally affected by legal issues.

Who doesn't remember the classic meme with a famous face pointing at us, accompanied by the phrase "And you know it”? Or that of a girl who looks at us with a defiant face while in the background you can see a fire probably arson? It is common sense to think that the images of the people who are the protagonists of the memes, or the images that are incorporated, may be subject to rights that would prevent their unauthorized use. But this is exactly where it comes into play The limit of pastiche, protecting customs that have sometimes been extended to the point that it would be difficult to stop them by invoking legal issues.

In fact, if we stick to the literal wording of the rule, the limit allows Uses beyond humorous criticism, such as the incorporation or manipulation of previous works as a tribute or tribute. It is questionable, on the other hand, to what extent Pastiche operates in areas other than the visual arts, being able, for example, to accommodate the free use of other people's works within an audiovisual work regardless of the nature of the work incorporated (plastic, musical or audiovisual).

In this situation of Legal uncertainty, perhaps the prudent thing to do is not to stray too far from the bounded field of the parodywhere Humor is an essential component.