This article has been written by Mr. Anchal Purohit, a 2nd year student of Sambalpur University, Burla.
Abstract:
This exhaustive exploration scrutinizes the complex interplay between the doctrine of fair use and the art of parody in the vibrant landscape of Indian advertising. Through a comprehensive analysis of legal precedents, statutory provisions, and practical applications, this document unveils the nuances surrounding fair use in the Indian advertising sphere. From the delineation of fair use principles to the strategic deployment of parody in advertising campaigns, this study offers an in-depth understanding of the legal framework and practical implications that shape the dynamic relationship between creative expression and intellectual property protection.
Introduction:
The marriage of creativity and legality in the realm of advertising often encounters the intriguing intersection of fair use and parody. This document delves into the complex landscape of Indian advertising, exploring how the doctrine of fair use unfolds in this dynamic context and examining the strategic deployment of parody as a creative tool. The nuanced relationship between intellectual property protection and the freedom of expression takes center stage, offering a comprehensive understanding of how advertisers navigate the boundaries of fair use in a diverse and culturally rich environment.
Fair use:
The principle of fair use is applicable in cases of “transformative work”. For instance, one can refer to or copy certain parts of the copyrighted work to create their own work in cases of criticism or parody, among other things.
The quantity and whether the usage is just under the fair use doctrine will depend on the discretion of the court to a large extent. The court, while determining the same, will consider the circumstances and facts of the case.
Fair use under Indian Copyright Law: an overview
Section 52 of the Copyright Act, 1957
Section 52 of the Copyright Act, 1957, has provisions regarding exceptions to copyright infringement and limited usage of the already copyrighted work of an individual without prior permission. The entire Section has provisions on what constitutes fair use and fair dealings under the Copyright Act. These exceptions, along with other exceptions to the fair use doctrine, are discussed in brief below.
Berne Convention and TRIPS Agreements
The Berne Convention for the Protection of the Literary and Artistic Works, 1886, commonly known as the “Berne Convention,” along with the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement, has provisions for the incorporation of the “fair use concept” in national legislation.
Three-step test under the Berne Convention
The Berne Convention has a three-step test for fair use. It also asserts that the laws of the countries must mandatorily have provisions for reproducing work in the following instances:
In certain special cases:
- The original work must not be milked/exploited by the reproductive work.
- The new reproductory work must not be prejudicial against the interest of its author(s).
Examples of fair use
There is no straight-jacket formula to establish whether something qualifies as fair use; hence, it is always advisable to seek advice from a copyright attorney before taking on a significant activity that would depend on the fair use doctrine as a copyright infringement defence. However, there are some instances that have been used to portray the activities to which the doctrine is applicable.
The conditions of fair use
Under copyright law, the only way to determine whether a particular use is fair use or not is via the federal courts. The judges determine the fair usage policy with the four conditions, which are discussed in detail below. It is pertinent to note that these factors act as guidelines for the courts to reach a decision; however, they are free to make decisions based on the facts of the case at hand. In simple words, the judge has the right to determine whether a particular usage is a fair use at his discretion.
The purpose and character of the use
The purpose and character of your intended use are of utmost importance when deciding whether the particular use is fair use or not. While dealing with it, a question can be asked like the one mentioned below:
- Whether you are creating something new or whether the news immaterial is just a copy of the original piece.
- Whether any value has been added to the original work by the new creation, such as new information, new aesthetics, new insights, or the like.
- Whether the new material that has been taken from the original work transformed into a new creation by adding new expression or meaning to it.
In the case of Warner Bros. Entertainment, Inc. v. RDR Books (2008), the creation of the Harry Potter encyclopedia (that made Harry Potter conditions available in one volume) has been said to be “slightly transformative,” but the transformative quality was not sufficient for the creation to come under the fair use doctrine.
The nature of the copyrighted work
There is more leeway in copying from factual works like biographies than from fictional works like plays and novels, as the same proves beneficial to the public at large. Moreover, there will be a greater advantage in copying from materials that are already published than from unpublished work, the reason being that the scope of fair use for unpublished work is not as broad as it is for published work because it is at the author’s discretion to determine how he/she would want to announce it to the public. Simply put, using information from primarily factual works will have a greater advantage under the fair use doctrine than using purely fictional works.
The volume and substantiality of the part borrowed
It is oftentimes believed that the smaller the quantity of copied material, the greater the chances of it being excused under the fair use doctrine, but that is not the case. Even if a small portion of work is copied, the same will not come under the fair use doctrine if the copied work is said to have been taken from the “heart” of the original work. So, an individual may get into trouble if he/she copies the most noteworthy aspects of the original creation. For instance, it will most likely not be fair use to copy the words “I can’t get no satisfaction” from the song “Satisfaction.”
There is no straightjacket formula for how much quantity is a fair use; however, it is said one must not quote more than a few words or paragraphs from a book, article, or poem, or add more than a chart, image, illustration, or any other artwork in a book or newsletter without the permission of the artist. However, there is no absolute word limit on fair use; for instance, adding 200 words from the copyrighted work to a 300-word new creation will not amount to fair use. Nonetheless, copying 2,000 words from a work consisting of 500,000 words may amount to fair usage. Ultimately, it all depends on the circumstances and the facts of the case.
The volume and substantiality of the part borrowed in the case of parody
The aforementioned rule does not have to be true in the case of parodies because the Supreme Court in the US case of Campbell v. Acuff-Rose Music (1994) affirmed that “the heart is also what most readily conjures up the (original) for parody, and it is the heart at which parody takes aim.” In short, as per the Supreme Court’s decision, a parodist is allowed to borrow a larger portion, even the heart of the original work, to conjure up the original work.
The effect of the usage on the prospective market
Another crucial condition under fair use is whether the new creation divests the original copyright owner of income or hinders the creation of a new or potential market for the copyrighted work. In any circumstance, if the original copyright owner is deprived of any source of income, it is very likely that a lawsuit will be filed against the owner of the transformative work, and the same will be so even when the new work is not competing with the original work.
For instance, in the case of Rogers v. Koons (1992), an artist, without taking prior permission from the owner of the copyrighted work, i.e., the creator, created wood sculptures using the copyrighted photographs of the creator and earned a huge amount of money by selling these sculptures. When the creator of the photographs sued the artist, the artist contended that the sculptures were fair use as the photographer would never have considered making sculptures using his photographs as a reference. However, the Court opined that it did not matter if the photographer had considered making sculptures or not; what actually matters is whether there is scope for a potential market for selling sculptures of the photographs or not.
The effect of the usage on the prospective market in case of parody
Even here, parody is given a distinct fair use analysis for the impact it would cause on the market, for there is a possibility that a parody may reduce or even destroy the market value of the original work, i.e., there is a possibility that the parody is so good that the public can never take the original work seriously ever again. Yashraj Mukhate’s “Rasode Me Kon Tha Song” is one such example.
A circuit judge in the case of Fisher v. Dees (1986) asserted, “The economic effect of a parody with which we are concerned is not its potential to destroy or diminish the market for the original—any bad review can have that effect—but whether it fulfils the demand for the original.”
Foundations of Fair Use:
Understanding Fair Use Principles: A comprehensive exploration of the foundational principles that underpin the doctrine of fair use, emphasizing the delicate balance between protecting intellectual property and fostering freedom of expression.
Statutory Provisions in India: Analyzing the relevant provisions of Indian copyright law that articulate the parameters of fair use, including Section 52 and other related sections that provide the legal framework within which fair use operates.
Parody in Indian Advertising:
Defining Parody: A nuanced examination of the concept of parody, dissecting its various forms within the advertising domain and illustrating how it can be a powerful vehicle for creative expression and social commentary.
Strategic Deployment of Parody: Exploring how advertisers strategically employ parody to engage audiences, navigate cultural sensitivities, and establish brand identities, while also addressing the potential legal implications.
The Legal Landscape: Case Law and Precedents:
Landmark Cases in Indian Advertising: A detailed analysis of significant legal cases in the Indian advertising landscape where the doctrine of fair use and parody played a pivotal role, offering insights into judicial interpretations and outcomes.
Evolution of Fair Use Jurisprudence: Tracing the evolution of fair use jurisprudence in India, examining how courts have interpreted and applied fair use principles in the context of advertising over time.
Nuances of Fair Use in Advertising:
Transformative Use: An exploration of the concept of transformative use and its relevance in determining whether the use of copyrighted material in advertising qualifies as fair use, with practical examples and implications.
Market Effect and Commercial Considerations: Analyzing the impact of fair use on the market value of copyrighted works in advertising, and considering the commercial considerations that courts take into account when assessing fair use claims.
Cultural Sensitivities and Fair Use Challenges:
Navigating Cultural Contexts: Examining how cultural sensitivities in India influence the application of fair use principles, and exploring the challenges advertisers face in navigating these contexts while incorporating parody in campaigns.
Public Reception and Ethical Considerations: Investigating the role of public reception in determining the permissibility of parody in advertising, and discussing the ethical considerations that advertisers must weigh when employing such strategies.
The Role of Fair Use in Innovation:
Fostering Creativity and Innovation: Assessing how the doctrine of fair use, when appropriately applied, fosters a climate of creativity and innovation in Indian advertising, encouraging novel approaches and pushing the boundaries of conventional marketing.
Educational and Social Commentary: Discussing the potential of fair use in advertising to serve educational and social commentary purposes, and how this aligns with broader societal interests.
Legal Certainty and Industry Best Practices:
Seeking Legal Certainty: Exploring the need for legal certainty in the application of fair use in Indian advertising, and proposing measures to provide clearer guidelines for advertisers and content creators.
Industry Best Practices: Offering insights into best practices for advertisers and agencies to navigate the terrain of fair use and parody, emphasizing the importance of legal counsel and due diligence.
Conclusion:
In conclusion, this document encapsulates a comprehensive understanding of the nuanced relationship between fair use, parody, and the dynamic world of Indian advertising. As the advertising landscape continues to evolve, navigating the delicate balance between creative expression and intellectual property protection becomes increasingly crucial. By examining legal principles, industry practices, and cultural considerations, this study aims to contribute to a more nuanced and informed approach for advertisers, content creators, and legal practitioners alike.
Reference:
https://www.mondaq.com/india/copyright/1348352/what-is-fair-use-of-copyright-doctrine
https://www.theippress.com/2021/07/28/parody-as-defense-in-copyright-dispute/