PARODY, PLAGIARISM AND COPYRIGHT

 THE LIMITS OF PARODY, IN RELATION TO A COURT CASE REPORT OF URUGUAY

 

Edgardo Ettlin

 

 

1. Parody and its conflicts with Copyright

 

The word “PARODY” derives from the Greek “Parodia”, which in turn derives from “Para” and “Odé”, meaning something like “similar song”, word that later went on to name any work of burlesque imitation (although sometimes it has a certain purpose of homage or criticism) of some artistic work. Very old form of expression, we see it in Literature, in Music, in Theater, in plastic arts. Parody in Music is not the same as parody with literary content, or when music has literary content (such as a poetry or a libretto). In Music the term is used to reuse parts of a work in another, or to adapt it to a different text than the one originally used, not necessarily for satirical purposes. When the work is made with parts of different works or different parts of a work, it already constitutes a “pasticcio” or “pastiche”, a “scrambled” or a “refrito”. It is around the 19th century that Isaac Disraeli established the concept of “parody”, especially referred to Literature but adaptable for all parodies of artistic works, as a work composed on top of another work, but transferred to a different theme by means of a slight change of expressions.

 

A parody can be made: 1) of a simple historical or legendary episode or character, or of some event or person of current interest; 2) of an artistic, academic or technical work (for example, a musical or literary, theatrical or visual work, or any other particular or composed artistic or written expression). In turn, parody can be conveyed through literary or written, musical, acting and visual representations or adaptations, individually or in combination. For the purposes of these disquisitions, it is important for us to consider the second: the one based on a written or artistic work.

 

Parody in written and artistic creation implies adapting or using resources from other people's works. However, unlike simple adaptation or plagiarism, parody is characterized by:

 

a) Because of its purpose:- It has a purpose different from that of the original work, generally satirical, ridiculous or entertaining (mostly, it is not necessarily so; eventually trivializing or disrespectful). But it can also have a purpose of homage, criticism or social, political, moral or even educational controversy, and even erotic or pornographic. The characteristic of the parody, especially the one that has literary content, is that it intends to convey an occasional amusement, or to convey a different message from that of the original work.

 

b) Because of its mechanics:- It is based on a generally known pre-existing artistic or literary work, in such a way that although the parody does not have the purpose of being confused with it, taking advantage of it or parasitizing directly on it, or does not intend to harm economic o moral interests of the author or of the original work, the evocation or allusion to it is not absent. In fact, the original work can be the inspiration so that, based on it, the parody can recreate another object to express a different content of its own. What's more, the adaptation or the resource that can evoke a pre-existing work is even of the nature of parody, because with it a very special way of communicating its message is proposed. However, parody as a medium. As we said, it pursues an object different from the original work that it evokes or that gives it circumstantiality. The parody is based more on the plot and thematic idea of ​​the original work that gives it a basis or pretext, that on its texts, nevertheless can take them literally in certain passages, with the brake that it must take care that it does not end up becoming an adaptation or plagiarism. of the protected text.

 

c) Due to its occasionality:- It has a rather fleeting or occasional purpose. Creativity is not considered nor is its essence, although it cannot be denied that transposition and re-creation can have their overtones of creativity. This also goes hand in hand with the purpose of the parody, which has a more immediate meaning as it aims to be entertainment, or to provoke (especially when it takes advantage of satire or humor) the predisposition of the public “lowering its defenses” looking for an emotional impact (which can range from ridicule to causing animosity) in which a critical, moral or instructive message is inherent, or even an incitement. But in principle, that is the end of it. Parody is also not usually proposed in principle, and it is not its nature, to be successful or commercially exploited; although it cannot be ruled out that eventually it will not have it. Although it would not cease to be in a certain way an artistic or even striking expression, the parodic work does not necessarily intend to be an original work, with artistic content in itself or with high technique, or that intends to transcend the centuries as such. Rather, it has a popular and popularizing character -“popular art”?-). It could be considered, to paraphrase Carmelo Castiglioni's terminology, a “work not-work”, or more generously a “meta-work”. But, is parody a “work” in itself? Because sometimes it can end up constituting a true work by itself. 

 

It has been argued that parody, whether or not constitutes itself a work, a “non-work” or a "meta-work", can mean an artistic expression that would be permissible within the freedom of expression, and that value sometimes collides with Intellectual Property rights. Since parody supposes the use, intervention or re-creation of a pre-existing work, and although it does not intend to take advantage of the original work directly but rather to transmit a message or a meta-message with different content by taking elements from it, conflicts may arise between the original creator and the parodic re-creator. Now, since it is questioned whether or not parody would be a form of artistic creation, what should be the scope and limits of it in relation to Intellectual Property rights. These conflicts will normally end up in Justice, and the Judge must balance these rights to allow their play as much as possible, within the framework of the Law. Tolerated by the custom of society, the common person does not associate this parodic adaptation with an intention of plagiarism or illicit reproduction of works outsiders, nor does it consider it a bad practice; though for the creator of an original work, having his work parodied can be a really annoying experience.

 

Justice usually finds in some cases what we could call “good parodies”, in which although the imitative or transposing purpose is clear, the parodic work by its nature, although it may provoke an evocation of another original work, it does not pretend to be another work because it intends to exhaust itself in being a vehicle that transmits a ridiculous, moralizing or controversial content, different from that of the original work, without necessary commercial intention. We have extracted these criteria to conceptualize the "good parody" from some European judicial precedents (“verbi gratia”, Judgment of the Court of Appeals of Versailles dated 16 March 2018. Judgment of the 15th Section of the Provincial Court of Barcelona of 10 October 2003. Judgment of the Provincial Civil Court of Madrid Section 28 of 23 November 2018. Judgment of the Provincial Civil Court of Madrid Section 13 dated 2 February 2000).

 

But we also have the "bad parodies", which are intended to parasitize or revile the original artistic creation by lowering or diluting its content, or are intended to be a mere adaptation without that ridiculing, critical or moralizing purpose, to transmit content or hateful communications, or that incite resistance or rebellion. On many occasions, they seek an economic or commercial benefit by taking advantage of an association that the public can make with the original work.

 

However, the Judge in the assessment of a work presented as a parody in confrontation with a protected literary or an artistic work, must also be in accordance with what the Law or the international norms of each country tell him. Depending on the systems, the Judge has more or less margin to balance any of these rights. The criteria for balancing them can be found in the so-called “Three-Step Test” (art. 9.2 of the Berne Convention, art. 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, art. 10 of the WIPO Copyright Treaty, article 21 of the Andean Decision No. 351/1993), which although it is aimed at the legislation of the States, can guide the Jurisprudence: 1) the limits and exceptions must be established in the legislation; 2) it must be analyzed if the doubtful use alters the normal exploitation of the work; 3) it should be studied whether or not the doubtful use is fair with respect to the interests of the author.

 

In classical international Intellectual Property Law, arts. 2.3 and 12 of the Berne Convention protect adaptations (within them, we understand parodies even if they are not named that way) as long as they have the authorization of the original author. The Berne system, however, does not prevent States from establishing eventual exceptions “provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” (art. 9.2 thereof, see also art. 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, and art. 10 of the WIPO Copyright Treaty; all already cited) for uses such as parody. The Universal Copyright Convention does not change things.

 

In the European Union, the initial provision states that the States may establish exceptions or limitations to the protection of Copyright in the case of “use for the purpose of caricature, parody or pastiche” (art. 5.3. “k” of Directive No. 2001/29/EC on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society). However, Directive No. 2019/790/EC on Copyright and Related Rights in the Digital Single Market recommends that “Users should be allowed to upload and make available content generated by users for the specific purposes of quotation, criticism, review, caricature, parody or pastiche”, anticipating the possibility that the Member States guarantee that users can be covered as an exception or limitation to Copyright, when uploading and making available content generated by users in the services to share content online, when it comes to “use for the purpose of caricature, parody or pastiche” (Recital 70. and art. 17.7.inc. 2.“b” of said Directive). Now, the border of what is meant by “parody” and how much or how it will be allowed, will be given by the legislation of each European country.

 

The art. 51.a of the German Copyright and Related Rights Protection Act states that “The reproduction, distribution and public performance of a published work for the purpose of caricature, parody and pastiche is permitted. Permission… includes the use of an image or other reproduction of the work used, even if it is protected by Copyright or a related property right.”. In other words, parody is established as an exception to Copyright protection. With this freedom, we try to give priority to balancing Intellectual Property rights with the rights of freedom of expression and artistic freedom, trying to combine individual and social interests, without detriment to each other.

 

In Spain, the art. 39 of Royal Legislative Decree No. 1/1996 (Intellectual Property Law) establishes that “The parody of the published work will not be considered a transformation that requires the consent of the author, as long as it does not imply a risk of confusion with it or infer damage to the original work or its author.” In Latin America, it is also the criterion of art. 47 of Law No. 9,610 of Brazil on Copyright, and similar in art. 49 of Legislative Decree No. 822 on Copyright of Peru, and in art. 16 literal "d" of Colombian Law No. 1915/2018 amending Law No. 83/1982. In France, art. L122-5 no. 4 of the Intellectual Property Code states that the author cannot prohibit parody, pastiche and caricature “taking into account the laws of the genre”. In the cases of these Laws, the Judge can make a better interpretive and creative balance, according to each case and the nature of the legal assets at stake.

 

In the United States, where there is no specific legislation on parody, Judges are also free to balance, in examining parody in relation to Copyright, more freely the individual and social interests involved, and some they have postulated that it is protected by the First Amendment of the US Constitution that guarantees freedom of expression, but the basic criterion is that the parodic use is fair. In this sense, the situation must be analyzed according to Title 17 Section 107 of the United States Code (“Copyright Law”), to evaluate as fair use criteria (“fair use”): “1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work.”. The Jurisprudence of that country coined a distinction depending on the parody target of the original work (“target parody”), in which the parodist expresses himself about the original work transforming it into a mocking, satirical, critical or homage version, a mere adaptation or use of foreign texts or arts, or if the work parody is used to redirect the original work by relating it to, or incorporating, events or themes of political and social interest for which it was not designed (“weapon parody”). In this last case, the North American jurisprudential vision is more reluctant or circumspect, with respect to considering it a fair use of parody. On the other hand, the Court of Justice of the European Union, interpreting article 5.3. “k” of Directive No. 29/2001/EC, pointed out in case C-201/13 that the meaning and scope of the term “parody” must take into account its usual meaning in current language, being enough that it evokes an existing work although it can be differentiated from it, and it can show a humorous manifestation without interest that it is projected in the parodied work itself or that it is projected on other objectives, such as political, social or people, without distinguishing between “target parody” or “weapon parody”, having to respect a fair balance between the interests and rights of the owners and the freedom of expression of who invokes the exception of parody; what is left to the discretion of each court in each specific case.

 

In Uruguay, the parody of a work without the authorization of its author is prohibited. This is what the arts. 35 and 44 lit. “A” no. 4 of Law No. 9.739 mark (“Those who recast, copy, extract, adapt, abridge, reproduce or parody original works, have ownership of those works, provided they have been done with the authorization of the authors”; “They are cases of illicit reproduction: The… adaptation or arrangement of a work without the authorization of the author”). In our opinion, our regulations are not interested in the distinction between adaptation, extraction, or parody; they only care about the relevance that there may or may not be in the similarities and coincidences between the texts. The question is whether by “adaptation” we also include parody (like parody could be a sort of adaptation); certain jurisprudence of our country would seem to have considered it that way, as we will see in the following Section. It is necessary to point out that the Uruguayan Judge, assuming that the parody is illegal if it is not authorized by the author, cannot distinguish between “good parody”, or “bad parody”, or “object parody”, or “weapon parody”, seeming to have little room left to assess whether fair use of the unauthorized parody was made to establish a Copyright exception. The approach is concentrated for the Uruguayan Magistrate in two aspects, whose order of factors will not alter the product: a) if the use for adaptation or parody was or was not authorized; b) if there are transcendental similarities or not, of content between the protected work and the questioned text. Now, art. 45 no. 4º of the Uruguayan Law allows “transcripts made for the purpose of comment, criticism, or controversy”; It is worth asking if it could be considered as fair use, the parody that has those purposes within a flexibility of the term “transcriptions”. In our opinion, it is not prohibited in Uruguay to parody or to adapt a work of public domain, subject to eventual State fees (arts. 34, 40, 42, 60 and 61 of Law No. 9,739).

 

The arts. 2nd, 25, 26 and 36 of Law No. 11.723 of Argentina on the Legal Regime of Intellectual Property, do not allow parody without the consent of the author, in the same way as Uruguay. If this is authorized when the original work is in the private domain, the parodist has a co-author's right unless otherwise agreed, although if he parodied a work in the public domain “he will be the exclusive owner of its adaptation, transportation, modification or parody, and will not may object to others adapting, transporting, modifying or parodying the same work”.

 

These disquisitions allow us to handle some elements to consider for the analysis of the jurisdictional case that we will address.

 

 

2. The “Fischer Case”. A conflict between Author's Rights and ¿Artistic Freedom?, brought before the Courts.

 

In Uruguay, the writer Diego Fischer, author among many works of the book “Al Encuentro de las Tres Marías. Juana de Ibarbourou más allá del mito” (“To the encounter of the Three Marias. Juana de Ibarbourou beyond the Myth”), sued RS as Director of the group of Parodists “Z” and MV as lyricist author of the musical-theatrical parody work “Juana de América”, which was presented in performances of the 2016 Carnival season. Damages were sued for Extracontractual Liability, arguing that the parody work “Juana de América” constituted an illicit transformation and adaptation, not authorized by the actor, of the book “Al Encuentro de las Tres Marías…”, which took some parts of this work for vulgar purposes, harming the literary merits of the original work, a work of historical novel that rescues unknown and private aspects of the writer Juana de Ibarbourou not treated until now. The defendants allege that the libretto for its creation had a different argument from that of Fischer's book, which chronicled parts of Juana de Ibarbourou's life that anyone could record, and that two literary works (one was Fischer's) and an audiovisual documentary had been taken as a source of information for the preparation, and that an illicit adaptation of Fischer's book was not made in the theatrical parody; In addition, those required disputed the existence of the damages that were claimed.

 

The litigation dealt with the core of the debate and judgment, on the literary content of the parody work, in relation to the original and protected work (dated in time prior to the doubted one, obviously).

 

It is necessary to point out that in Uruguay, the “Parodistas” or better said, the “Parodismo”, constitute a burlesque musical-theatrical genre of the Uruguayan Carnival, whose creation has a very transitory time of communication (performances in the Carnival season whose shows in our country actually extend between January and March of each year, although sometimes they usually do performances in the rest of the year). This genre usually uses and adapts foreign music and texts for its creation on the occasion of its own works, with generally burlesque purposes, although in some cases this has transcended that character. It is precisely the characteristic and peculiarity of that expression, the use or adaptation of artistic resources that are partly foreign (especially musical -popular songs or of the moment- and certain texts -possibly transcribed or paraphrased-) for the preparation of the works they represent; hence their name “parodists”. Parodism had popular and “amateur” origins, although now it has been improved and even artistically professionalized. It never was and it is never customary for parodists to request permission to use other people's works, and in fact this has been an accepted practice in the country, which was even recognized by the General Association of Authors of Uruguay (AGADU).

 

Another genre of Carnival such as the Murga has similar peculiarities to the parodists, since they are used to (and it is part of their traditional mechanics since long ago) using in their music, melodies of songs of the moment or well-known, and on occasion, even fragments or passages from texts by other authors.

 

Returning to the Court case in approach, we have to emphasize that the author and the representative of the doubtful text, used by the group of parodists in their shows, did not have authorization from the plaintiff Fischer for any purpose, to eventually adapt or parody his novel.

 

It was necessary to analyze, for the purposes of what is required by national legislation insofar as it does not allow parody of protected works without the authorization of the author, and assuming that this authorization had not existed, only if the questioned work had similarities with the protected work or not. In the assessment of the evidence, the texts (the original and the one doubted as illicit) were submitted to an expert opinion by the National Academy of Letters.

 

The opinion of the National Academy of Letters analyzed both texts, examining the frequency and extension of the similarities identified (quantitative elements), as well as the importance given to the episodes and the words used by the author of the original work (qualitative elements), in the questioned text. And it was found that the questioned text contained paraphrased or literal reproductions, similar to those of the protected work. It was also found that the situations raised and the selection of facts in the parody “Juana de América” ​​were also significant aspects that had been highlighted or constituted a novel revelation in the original work of the novel. The expert opinion showed that behind the doubtful text, the work of the claimant could be recognized as the implicit text or hypotext.

 

With which it was concluded that the theatrical parody was really, more than a parody, a mere adaptation of the protected novel of Fischer. It could even show us that it even took on signs of plagiarism, in the comparison of the similarities and the findings that there were in that sense.

 

We must emphasize that the expert analysis focused on the comparison of the literary analysis from an academic technical point of view, rather than analyzing what the purpose of the parodied text was. It could also be criticized that the comparative analysis should not have been done from the point of view of a “literate” or literary expert, but should have been evaluated from the point of view of an average public that consumes books and shows that obviously the National Academy of Letters does not represent, and in which as a common observer the Judge should be placed according to prudent standards of medium sensitivity, when assessing the background in the opportunity to pass sentence.

 

The defendants were aware that they had not requested authorization from anyone for the parody “Juana de América”, although they tried to postulate that it is not customary in the genre of Carnival parody to request authorization from the owners of the works to use or adapt them in their shows. 

 

Judgment No. 26/2019 of the 18th Civil Court of First Instance and second instance Judgment No. 44/2020 of the 2nd Civil Court of Appeals ended up lauding the issue, making the defendants responsible for the damages caused to the actor Fischer, on the occasion of the adaptation or parody questioned as illegal.

 

Both Courts agreed with the expert evidence, in that the doubted parody work was a partial adaptation with non-direct use (because it was a parody) of the creation of a pre-existing work. In our opinion, it was no longer a simple pleasantry about the life of a character (a writer), going beyond satire to become the adaptation of another work under the pretext of wanting to parody the life of a character, using without authorization and therefore illegally, an alien text. Proceeding that had even generated an economic product for the adapter for the reproduction and for the director of the work for the representation (there was even interference in the text by introducing a character), but with injury to the rights of the legitimate author and the integrity of his work.

 

Regarding the issue that it is not customary to request permission from authors of original works to use them in Carnival parodies, the acting 2nd Civil Court of Appeals stated that this is not an excuse, since custom is not a formal source of Law nor does it constitute rights (art. 9 of the Civil Code) in Uruguay; and that therefore this argument could not be considered.

 

A previous and circumstantial statutory problem was cleared up, since all the litigants were partners of AGADU and it was understood that the lawsuit for damages derived from non-contractual liability was not hindered by art. 12 of the Statutes of said association in that they were not problems between partners “as a direct consequence of their quality as such” (in which case they must be submitted to an Arbitration Court of the association), and taking into account the expert opinion that clearly recognized the work of the plaintiff as the basis of origin for the adaptation or parody in question, and not other sources (without finding in it other reference documents that the defendants said had been used), once the responsibilities of the defendants for the aforementioned illicit reproduction were determined, the different items to be compensated were defined.

 

In this regard, we must specify that in Uruguay the examination of parody is not necessarily verified according to the "Three-Step Test", but rather by adhering to the following more demanding criteria:

 

a) the Judge cares to establish the similarities and coincidences between the confronted texts, to assess whether or not the debated text is an adaptation or parody (in this case, it is not necessary to postulate conceptual distinctions between “adaptation” or “parody”, because both practices are prohibited by the Law -articles 35 and 44 lit. A number 4 of Uruguayan Law No. 9.739 -). For which and without prejudice to his criteria, the expert opinion can illustrate and guide the reasoning of the Judge without having to be servile to him;

 

b) having considered that the questioned text is a parodied or adapted text of the original, it must be determined whether this adaptation or parody was authorized by the author of the owner of the work;

 

c) being admitted as fact in “the Fischer case”, or in its case being proven (arts. 137 and 139 of the General Code of Process), that express and documented authorization was not given in its case by the owner of the original work the author of the questioned text to adopt or parody it, the questioned work must be considered illicit;

 

d) The unauthorized (illicit) use of a work by means of adaptation or parody merits consideration of the appropriateness of the damages that may have been inflicted, and if applicable, imposes the obligation to compensate the original author for the damages that may have been caused (articles 1319 of the Civil Code and 51 of Law No. 9.739).

 

In both instances, the lyricist MV and the director of the parodist group RS were sentenced jointly and severally (in reality it should have been “in solidum” because the blame for the co-participation was established by way of guilt, not fraud -art. 1331 of the Civil Code -) to pay the plausible price that would have entailed a license or transfer of Copyright to adapt the text, as consequential damages, as well as a civil fine as punitive damages (art. 51 inc. 1º “in fine” of Law No. 9.739). Although in the first instance they were sentenced to pay an amount of US$8,000 for consequential damages, and eight times that amount for civil fines or punitive damages, in the second instance these values ​​were lowered to US$ 6.500 for the hypothetical license or transfer (consequential damage) and once that value for a civil fine (punitive damages). A sentence imposed in the first degree on MV to pay 50% of what was received for representations through AGADU (considered but not sentenced in the first instance sentence, although it was increased by the item in that stage before a request for clarification and extension by interlocutory ruling of the 18th Civil Court No. 981/2019), it was eliminated in the second instance when it was determined that material damage was already contemplated in the conviction for consequential damage.

 

Likewise, the defendant RS was ordered to pay the claimant Fischer an amount for non-pecuniary damage, not for the illicit reproduction, adaptation or parody, but for the impairment that would have been inflicted by damaging and degrading statements that he made against the claimant in the press. (what was valued “in re ipsa”); sentenced to pay US$ 10.000 in the first instance, this figure was lowered to US$ 7.000.

 

 

3. Some considerations on the “Fischer case”

 

In our opinion, the sentences that awarded this litigation balanced correctly, within certain difficulties and inaccuracies that sometimes supposes a Justice not specialized in matters of intellectual property, the facts, the subjects and the interests in conflict; as well as plausibly granted the legitimate successor, within what can always be debatable and within the prudent discretion that the courts usually take to assess the items of compensation for damages, the protection that the regulations on Copyright and related rights protected him . All this provided the courts with the corresponding evidence, and even taking into account a valuable evidence instrument to weigh the comparison of the written texts in confrontation, such as the expert opinion used, produced by the National Academy of Letters.

 

It is true that it is not common practice, although custom does not give or generate rights, that Parodists or Murgas request proper authorization (if possible in writing, verbal is not enough) to use lyrics or texts that are not their legitimate authors. Perhaps because it is part of the nature and tradition of these genres in their artistic expression, of popular roots, and because major authorial conflicts had never arisen until this case.

 

Will this trial mean an instructive so that from now on due care should be taken by the artistic expressions of the Uruguayan Carnival in terms of avoiding authorial conflicts? Should this really be necessary, when such practices in principle do not intend or intend to unduly infect or parasitize protected works, or harm their legitimate authors?

Should the artistic expressions of the Murgas and parodic groups be protected, and should their imitative, re-creative or adaptive practices of other people's works be considered for the purposes of these expressions, within the freedom of Art, which is a manifestation of the freedom of thought and expression of thought? Strictly speaking, National Law does not allow it, because parodic practices without the authorization of the owner or the beneficiaries of the original work are forbidden. Should the limiting norms be considered unconstitutional, or should the protection of rights be emphasized more on the freedoms of expression and creativity, than on Intellectual Property rights?

 

It all depends on the glass with which you look. However, any response that wants to be given (which we leave open and subject to the peculiarities of each specific case) must be framed within a solid foundation of Law. Everything within the law, nothing outside of it.

 

 

 

Montisvidei, die secunda mensis Julii A.D. MMXXI