In today’s era of pervasive technology, parodies are everywhere. YouTube is a prime example – the site is littered with video parodies of all kinds. For example, a video parody of the James Blunt song “You’re Beautiful”, titled “She Was Beautiful…I Swear”, has received over two million hits.
What makes a parody controversial, in the intellectual property sense, is that in order to have a successful parody, enough of the original work must be taken so that the original is recognizable. This copying has obvious implications in both the trademark and copyright fields.
Trademark law. Under trademark law, infringement of a trademark by a parody mark is difficult to prove. Consumers are normally aware that the parody is a “spoof” of the original and source confusion is therefore unlikely. As a result, trademark owners often attempt to rely on the dilution provision of the Trademarks Act claiming that the parody has depreciated the goodwill in the original trademark. It is clear, however, that dilution does not occur unless the parody mark is used commercially.
Take for example a case involving the tire company Michelin and its “bibendum” design (a.k.a. the Michelin Man, or a “beaming marshmallow-like rotund figure composed of tires”), a registered copyright and trademark. The defendants, attempting to become bargaining agents for employees at a Michelin plant, distributed leaflets to workers displaying the bibendum design. In the leaftlets, although the bibendum sported his famous smile, his foot was raised in an attempt to crush an unsuspecting worker while a coworker stated “Bob, you better move before he squashes you”. The Court held that because the trademark was not used in a commercial sense, dilution could not have occurred.
This case should be contrasted with an earlier case where a company was prevented from selling water under the name “Pierre Eh!” (an admitted spoof on Pierre Trudeau) because it was confusing with and depreciated the goodwill in the PERRIER trademark.
Of course, if the public cannot determine the difference between the parody and the original trademark, trademark infringement may occur. In the U.S., the registration of the domain www.peta.org, used to direct Internet users to a web site called “People Eating Tasty Animals,” was not considered a parody of the trademark PETA owned by the well-known organization People for the Ethical Treatment of Animals, because users entering the URL www.peta.org into a browser would be unaware of the parody.
Copyright law. Under copyright law, the topic of parody is often discussed in relation to music. Weird Al Yankovic has, for example, made a career out of creating witty renditions of famous songs. The official Weird Al Yankovic website indicates that “while the law supports his ability to parody without permission”, Weird Al does obtain permission from the original songwriters. It appears that in the U.S. at least, Al is right: the law does support the ability to parody without permission.
This was tested in a U.S. case involving the music group 2 Live Crew and the owner of the Roy Orbison song “Pretty Woman”. 2 Live Crew was unable to obtain the consent of the owner to sell a parody of the Pretty Woman song. Unfazed, 2 Live Crew released the song containing lyrics such as “two timin’ woman now I know the baby ain’t mine” and was sued for copyright infringement. It was ultimately held that the song could be perceived as a criticism (apparently relating to the naiveté of the original version that ignored the ugliness of street life), and therefore the parody exception to copyright infringement applied.
Canadian courts appear to have less of a sense of humour when it comes to a parody of material that is the subject of copyright. In fact, the courts have specifically held that parody does not fall under the infringement exception in the Copyright Act because it is not considered criticism, prompting some to question whether Parliament should create an exception under the Act.
Parodies will undoubtedly continue to proliferate on YouTube and other popular Internet sites. Few people are aware of the potential implications of a parody, and it is clear, particularly in terms of copyright, that parody is no laughing matter.
Heather E. Robertson, Toronto