Below is an excerpt from John McKeown’s March 2015 Mailer where he discusses protecting product advertising.
Parodies
Traditionally, parody in a literary context consists of a composition in which the characteristic style of an author is mimicked and made to appear ridiculous, especially by applying such a style to inappropriate subjects. More recently there have been a number of cases where parody web sites or sites for critical commentary have been directed at a specific business. Frequently a domain name is obtained which consists of the subject of the site’s trade mark combined with the word “sucks” but other methods are used.
Previously a number of Canadian cases held that parody or burlesque was not a defence to a claim for copyright infringement but the rules have changed. After November 7, 2012 section 29 of the Copyright Act provides that fair dealing for the purpose of parody or satire does not infringe copyright. It is possible in a specific situation that a parody or satire may be an infringement of the author’s moral rights even if it was within the exception.
A recent decision of the Court of Justice of the European Union may provide some assistance in applying the exception to copyright infringement for fair dealing for the purpose of parody. In that case the court was asked to consider a parody exception which is similar to the Canadian exception.
With regard to the usual meaning of the term ‘parody’ in everyday language, it was not disputed, that the essential characteristics of parody are: first, to evoke an existing work while being noticeably different from it and second, to constitute an expression of humour or mockery.
The court concluded that the Directive must be interpreted as meaning that the essential characteristics of parody are: first, to evoke an existing work, while being noticeably different from it, and second, to constitute an expression of humour or mockery. The concept of ‘parody’ within the meaning of the directive is not subject to the conditions that the parody should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work; that it could reasonably be attributed to a person other than the author of the original work itself; that it should relate to the original work itself or mention the source of the parodied work.
These developments will likely make it more difficult for brand owners to take effective legal action against parodies under the Copyright Act. Consideration will have to be given to other potential claims and non-legal responses.
The 30th ABA Annual Intellectual Property Law Conference
I have put a group of speakers together, in addition to myself, for this meeting which will take place on March 25 in Bethesda, Maryland. The program is entitled A Trademark Overhaul: Canadian Trademark Amendments and Their Effect on U.S. Trademark Owners. There will be a host of other speakers on other topics of interest at the conference which takes place from March 25-27, 2015. Click here for more information relating to the conference.
Click here to read the entire mailer.