Can you use third party owned copyright materials and trade marks for the purpose of parody or pastiche?

It is sometimes the case that a third party wants to use a brand owner's logos, visual designs and other copyright protected works, to produce works of parody or pastiche. However, at present, UK copyright laws do not provide exemptions to claims for copyright infringement, so as to allow for the use of copyright protected works in this manner.

For example, back in 2010, the BNP intended to broadcast a party political election broadcast featuring a picture of a jar of Marmite, alongside the BNP logo, together with the slogan "Love Britain Vote BNP". The broadcast was to be a parody of Marmite's then advertising campaign. Unilever obtained an interim injunction preventing the broadcast taking place. The Court held that it was highly likely that Unilever would be able to establish that it owned, or was the exclusive licensee of, the copyright in the artistic work comprised by the current version of the label on the Marmite jar and, prima facie, if the broadcast took place then copyright infringement would arise.

The Government has recently announced plans that, from June 2014, it will be changing UK copyright law, so as to allow for limited use of copyright works for the purpose of parody or pastiche, provided that the use constitutes "fair dealing" (i.e. limited, moderate use of someone else's copyright work that a fair minded and honest person would consider 'fair dealing'). Such use should not conflict with the normal exploitation of the said copyright work and should not unreasonably prejudice the legitimate interests of the copyright owner. Commentators appear to consider the new defence will be a narrow one, although until the Courts have heard a few test cases the position remains unclear.

However, even if the exception turns out in practice to be a generous one, the laws governing registered trade marks, registered designs, moral rights and defamation are not changing. Thus, in certain cases, these laws could be relied upon to prevent works of parody or pastiche. For example, if the parody amounts to a derogatory treatment of a creator's work then it may actionable as infringing the creator's moral right. Equally, if the parody/pastiche incorporates a brand owner's registered trade mark, or something similar, and is used as a vehicle to promote and sell third party products, then the brand owner may be able to sue for registered trade mark infringement.

So, all in all, whilst our copyright laws may be about to change, the age old message still remains the same; namely, make sure you get some good legal advice before you start using the planned parody or pastiche.

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