Copyright defences: what are caricature, parody and pastiche?

Under UK copyright law, there are exceptions to copyright infringement claims when original works are used for certain stated purposes. This is broadly referred to as fair dealing. Fair dealing can apply in circumstances where the use of the copyright work does not unduly prejudice the interests of the copyright owner, and the use is fair in the context of the purpose, which considers the amount of the original work used, and the potential impact on the market for the original work.

I am going to focus on three specific examples of fair dealing which may sound confusing on the face of it – caricature, parody and pastiche. What on earth are they and how might they provide a suitable defence for copyright infringement?

Caricature

When you think of a caricature, you may picture a street artist on holiday drawing an exaggerated picture of you with big teeth and a long nose (or maybe that’s just me). Broadly, this isn’t far away from what we’re looking at here – according to the UKIPO’s guidance, a caricature “portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment”.

For example, a cartoonist may reference a well-known artwork or illustration for a caricature, and in such circumstances could rely on fair dealing.

Parody

Parody is perhaps the easiest of the three terms to understand. According to the UKIPO, parody “must evoke an existing work while being noticeably different from it and must include an element of humour or mockery”. The element of humour or mockery is particularly important here – mere imitation, without a mocking or humorous element, does not qualify as parody.

The parody does not need to be attributed to a person other than the author of the original work, nor need it mention the source of the work parodied, nor relate to the original work itself.

One important factor is that the parody must not convey a discriminatory message, as this would undermine the legitimate interests of the rights holder.

An example of parody could be a comedian using a few lines from a film or song for a parody sketch. In this scenario, the comedian could potentially rely on fair dealing.

Pastiche

Finally, we turn to pastiche – perhaps not a word you have ever encountered in normal life. Pastiche involves imitating the style or nature of a genre, creator, or character, or creating a new work by compiling pre-existing works, such as a collage. Unlike parody or caricature, pastiche does not require an element of humour, satire, or mockery, but it must maintain a recognisable link to the original work while being noticeably different from it.

The courts have clarified that the pastiche exception is limited to copying the style of a work or creating an amalgamation of works (e.g. medleys). It does not extend to copying the subject matter or wholesale reproduction of the original work.

An example of pastiche may be an artist using small fragments from a range of films to compose a larger pastiche artwork. The artist may be able to rely on fair dealing in such a scenario.

If you need any assistance regarding copyright infringement, we are here to help. Just get in touch and we can discuss how best to tackle your query.