If you're a regular reader, you may remember that during the Hargreaves Review process, one of ideas floated was to introduce a broad, US style 'fair use' exception into UK copyright law. It fell at the first hurdle because 'fair use' is not one of the permitted exceptions under the EU Copyright Directive and would therefore require amendment at the European level.
However, an element of 'fair use' could creep into UK copyright law by the back door if the Government proceeds with its stated intention of introducing an exception to permit use of a copyright work for caricature, parody or pastiche. It's certainly allowed to do so under the Copyright Directive. And with the passing into law of the Enterprise & Regulatory Reform Act this week, a technical amendment has been made which would allow new copyright exceptions to be passed by secondary legislation into UK law.
I'm all for creativity but I haven't really seen a strong evidence-based case made that the absence of a parody exception has been a significant barrier. The Intellectual Property Office recently published three research papers on the subject, including this one here. They're worth reading.
So what's the point? It's whether commercial use is or could be permitted under a parody exception. Both the US 'fair use' exception and the proposed parody exception cover the creation of derivative works. Creation of a derivative work for commercial purposes can, in certain circumstances, be allowed under US fair use, particularly where the derivative work has a 'transformative character'
Whilst it is understood that the proposed parody exception under UK law will be for non-commercial purposes, I wonder whether that will always be the case.
In this context, it's worth taking a look at a recent US decision on fair use in a US Court of Appeals decision Cariou v. Prince which I read about this week on trusted info source, PLC. It reported that the plaintiff, photographer Patrick Cariou, published a book of photographs entitled Yes Rasta, featuring portraits and landscapes taken while he lived and worked among Rastafarians. A few years later, artist Richard Prince altered and incorporated several of Cariou's Yes Rasta photographs into a series of paintings and collages called Canal Zone that was exhibited at the Gagosian Gallery. The gallery also published and sold an exhibition catalog with reproductions of Prince's paintings.
In 2008, Cariou sued Prince, the Gagosian Gallery and the gallery's owner, alleging that Prince's Canal Zone works and the exhibition catalog infringed his copyrights. The defendants raised a fair use defense.
The Second Circuit Appellate Court found that Prince had used key portions of certain of Cariou's photographs but that, because in 25 of his works, Prince transformed Cariou's photographs into something new and different, this factor weighed heavily in Prince's favour. To put this in perspective, the Court did look at the impact of the derivative works on the market for the source works. It concluded that Prince's works and the show of his works did not usurp the market for Cariou's photographs because Prince's audience is very different from Cariou's. Also, none of the evidence suggested that Cariou would ever develop or license secondary uses of his work in the vein of Prince's artworks.
What all this shows is that the devil is in the detail in getting the balance right between rights and exceptions. As my good friend and the Publisher Association's esteemed copyright Counsel Hugh Jones says, "beware the law of unintended consequences."
Have a great Bank Holiday.
p.s. just a quick final note to say that the Laurence Kaye team are settling in at our new home at Shoosmiths LLP. You can see what we're up to here.