The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
So, a cartoonist may reference a well-known artwork or illustration for a caricature; an artist could use fragments of various films to compose a larger pastiche artwork – or a charity could produce a parody sketch to publicise a campaign.
Charities have produced some great parody appeals. See, for example, Armano Iannucci’s spoof of generic British charity appeals with the Kenyan appeal for British Theatre (or Africa for Norway’s charity appeal to buy radiators for all those poor Norwegians in their woolly reindeer jumpers).
We might expect the relaxation of the law to have produced a surge in outstanding charity parodies. But that has not happened – and on closer examination it is not hard to see why. Unhelpfully, and contrary to early drafts of the law, the exception only permits use for the purposes of caricature, parody, or pastiche to the extent that such use amounts to ‘fair dealing’. The concept of fair dealing is fairly well understood in some areas of copyright law, but it is not easy to apply to parody, caricature or pastiche. It is uncertain how much of an earlier work can fairly be copied and not clear whether the exception will only apply where the use is ‘non-commercial’. In addition, other areas of the law such as defamation, passing-off and trade mark use may come into play to limit the use of parody. The resulting uncertainty means that the new exception has not given free rein for charity parodies. Until the law has been tested many charities will choose to take a cautious approach to the use of parody.
Of course, in an environment of such caution a well-planned parody appeal could gain all the more attention. Back in the year 2000, before the parody exception was much more than dreamed of, even with its fair-dealing constraints, campaigners used other approaches to avoid the legal consequences of copyright infringement for parody campaigns.
In September 2000, activists from Reclaim the Streets created a 16-page spoof of the Financial Times to coincide with an international day of action against the 55th annual meeting of the World Bank and IMF. It gained significant media coverage. Printed on the distinctive salmon-pink paper used by the FT and featuring the flying man device, the Financial Crimes looked similar to the real paper, except that it ‘exposed and opposed the catastrophes caused and crimes committed by the global financial and governance institutions, instead of justifying them’ in order to “contribute to the growth of alternative, non-corporate media" and "disseminate the information that never makes the pages of daily newspapers".
The Financial Crimes was produced by a collection of activist groups who staged events to reclaim public spaces for common ownership, such as mass street parties on motorways. Perhaps unsurprisingly, the Financial Times hit back and several of the individuals involved received letters from the paper’s lawyers alleging a range of breaches of intellectual property rights including copyright infringement. One of these individuals found his way to an office under the Westway just off the Portobello Road where I was learning the ropes as a newly qualified charity lawyer. Since there was at the time no parody exception in UK law and because of other aspects of the claim (and not just, I hope, because of my inexperience) I could offer little hope of a legal defence to the claim. Nor was the activist concerned able to fund further advice. However, he was not perturbed. As I recall, he took note of the legal principles involved and then explained that he had no personal assets of note and that Reclaim the Streets was “a disorganisation” with no legal structure and so could not be held responsible for the actions of those unknown individuals who had compiled the spoof paper. Having done that, he made me a gift of a copy of the paper and left, presumably to plan future campaigns.
I still have my copy of Financial Crimes: framed, it sits propped against the wall of my home office. I was interested to discover recently that another copy has found its way into the collection of the Victoria & Albert Museum where it is described in the museum’s catalogue as:
‘a convincing spoof of the Financial Times … an ephemeral object [that] uses the language of everyday print design for political purposes’.
The parody exception points the way to the effective use of such ‘convincing spoofs’ without recourse to anarchic anonymity. This way will not really be open however until it becomes clear exactly what is permitted as ‘fair dealing’ in this context. It may be that this is clarified only by the development of case law and that in the process a number of charities find themselves on the wrong side of what is considered ‘fair’. Alternatively we can hope that our legislators will clarify the scope of the exemption and thereby guard against the prospect of charities being caught on the wrong side of the law, simply by exercising their legitimate right to protest through parody rather than as a result of mismanagement or financial crimes.
For more information see:
The work of Reclaim the Streets also features in the British Library’s online learning site, along with other direct action movements of the period including the anti-roads movement and the Newbury Bypass protest, under Counterculture … Dreamers and Dissenters.
For more information
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