Tuesday 16 September 2014

Could Ladybird bring the first parody challenge?

Conceptual art ?
Back in March we reported that artist, comedian and writer Miriam Elia was facing the potential of a copyright action from the book publisher Penguin after she self published here own spoof version of a 'Ladybird' Book -  which she titled 'We Go To The Gallery' - exploring modern art where the traditional characters of Mummy, Peter and Jane grappled with Tracey Emin-style conceptual art. One page, 'God Is Dead', depicts an empty room, in which Mummy introduces the children to a severe form of Nietzschean nihilism, whilst another page pokes fun at the giant inflatable animals that the artist and former Wall Street commodities broker Jeff Koons is famous for.  In the 1960s and 1970s Ladybird's Key Words Reading Scheme (launched in 1964) was heavily used by British primary schools, using a reduced vocabulary to help children learn to read. This series of 36 small-format hardback books presented stereotyped models of British family life – the innocence of Peter and Jane at play, Mum the housewife, and Dad the breadwinner. Many of the illustrations in this series were by Harry Wingfield and Martin Aitchison. The image and text above is from Elia's spoof. 

Whilst we suggested in March that Penguin hadn't been too heavy handed - a reported 15 page legal letter and several thousand pounds in legal costs for Elia perhaps suggest otherwise: And the Times (15.09.14) updates us on the spat. It details that Elia self published 1,000 copies of We Go to the Gallery selling at £20 each. The book contained collages made from scenes cut from old Ladybird books, and also contains the artist's own work. In March it seemed Penguin had allowed Elia to sell at least some texts - it seemingly said that it would allow her one month to sell enough books to cover her costs, but any more of the self published book have to be destroyed. Elia has now said she found the legal threats 'terrifying". It seems she spent three and a half months in correspondence and hired a lawyer - but realised that less was more - the the best (and cheaper) way forward was to 'stop responding' to lawyers letters . On their part, Penguin said "we take our copyrights and trade mark rights very seriously - not least around our Ladybird brand, which has been developed over many years to help very young children read".
This might help your child read English

Back in March we said that it was "interesting to consider what difference will the new UK planned exception for parody and pastiche will add to this scenario - from this blogger's perspective certainly an arguable defence". Well, it seems Elia has now made some changes to the book to take advantage of that very defence for parody which comes into play on the 1st October in the UK. The children are now called John and Susan, and the LadyBird logo has been replaced with a dung beetle. However, the question remains, will that be enough for Penguin? Of course parody has much been on the mind of the 1709ers: Case C-201/13 Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others was a keenly-awaited decision which went some way to explaining how the InfoSoc Directive exception for the purpose of caricature, parody or pastiche should be applied in Europe:  The Court of Justice for the European Union noted that ‘parody’ must be defined in accordance with its usual meaning in everyday language and also found that a parody need not display an original character of its own, other than that of displaying noticeable differences with respect to the original work parodied saying "the only, and essential, characteristics of parody are, on the one hand, to evoke an existing work while being noticeably different from it and, on the other, to constitute an expression of humour or mockery 

In addition The CJEU also held that that the application of the exception for parody must strike a fair balance between, on the one hand, the interests and rights of authors and other rights holders and, on the other, the freedom of expression of the person who wishes to rely on that exception: the media release at the time explained "If a parody conveys a discriminatory message, a person holding rights in the parodied work may demand that that work should not be associated with that message". It is for national courts to balance interests.

This is NOT about rioting
The United Kingdom's Intellectual Property Office's March 2014 guidance on the new exceptions explains that fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work, and has this to say:

The words “caricature, parody or pastiche” have their ordinary dictionary  meanings. In broad terms, parody imitates a work for humorous or  satirical effect, commenting on the original work, its subject, author, style, or some other target. Pastiche is a musical or other composition made up of selections from various sources or one that imitates the style of another artist or period. 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.


It is important to understand, however, that this change in the law only permits use for the purposes of caricature, parody, or pastiche to the extent that it is “fair dealing.” Fair dealing allows you only to make use of a limited, moderate amount of someone else’s work

Not usually Ladybird topics .......
So will Elia be able to successfully avail herself of the defence? The CopyKat suspects she will, but to an extent it's virgin territory in the United Kingdom. And it may not be the only test - it remains to be seen how far authors and publishers will allow themselves to be be pushed before they push back. The CopyKat has recently fallen for the charms of that FaceyBookie platform, and it was here he also spotted a link to a rather witty June 2014 posting on a blog called BAG OF DELIGHTS which is also a series of LadyBird spoofs ....... including book 'titles' such as 'Hot Dads', 'The Futility of Existence' and 'Blackmail'. Is this another spat waiting to happen or will Penguin allow this one to pass? That the titles 'Timmy's First Riots' or 'Bombs Made Easy' could ever be in any way be confused with 'Helping at Home' and 'Things We Like' and  'Kings and Queens' seems the most unlikely scenario imaginable. The images are another matter.

In Deckmyn, AG Cruz Villalon referred to "burlesque intention" as a requirement of parody. 
However, when considering the effect of a parody, he held that it is a common understanding that a parody must have a somehow humorous effect, and that it is left to (seemingly the courts) Member States to define what is humorous, also depending on different national sensitivities.  With a near blank slate, the English courts will need to look carefully at the parodied work and the rights of those whose work is parodies: what's funny, or what's not funny, might be a harder nut to crack. And will be interesting to see how moral rights  - the Section 80 CDPA author's right not to have his or her work subjected to derogatory treatment - might dovetail into any deliberations. Eleonora recently blogged about this over on the IPKat under the self explanatory header "Has the CJEU in Deckmyn de facto harmonised moral rights?". Of interest perhaps to Ladybird (or Ladybird authors) is the position in other EU states: In France the author has the perpetual right “au respect de son nom, de sa qualité et de son oeuvre” although other droit d’auteur countries (eg Italy) qualify the right of integrity by limiting it to distortions, mutilations or any other alterations prejudicial to the author’s honour or reputation. German law provides that alterations to a work that the author cannot reasonably refuse shall be permissible. Of particular interest might be the observation that in France parodies [subject to a specific exception under Article L-122-5 No 4 of the Code de la propriété intellectuelle] must be transformative and not harm the legitimate author, whether economically or morally. The article is well worth a visit as courts in the UK begin to come to terms with the reality of this new exception.

Will Ladybird be first to test this? Elia's work made me chuckle and the Bag of Delights titles are, to me, very amusing indeed. It may be that Ladybird chose a trade mark action before copyright in light of the new exception - even with a dung beetle now replacing the Ladbird logo - at least in Elia's tome. Time will tell.

For those interested in parody and all things locked in the 1970s can I recommend writer and designer Richard Littler's Scarfolk Council's facebook pages - the collection of erotic, submissive Christian/religious albums is an eye opener.

1 comment:

Ben said...

An interesting look at a 'parody' in the context of TRADE MARKS from the Bundesgerichthof here http://ipkitten.blogspot.co.uk/2015/04/dogged-pursuit-of-trade-mark-parody.html