The Court of Justice of the European Union (CJEU) has defined what constitutes a ‘parody’, an important exception to copyright infringement. The parody exception has come under scrutiny in recent years following the rise in popularity of parody accounts of well-known individuals on social media such as Twitter.

The CJEU has now ruled that the two essential characteristics of a parody are:

• To evoke an existing work whilst being different from it
• To be an expression of humour or mockery

The judgment of the CJEU notes that the concept of parody is to be regarded as an independent concept of EU law and interpreted uniformly throughout the EU. However, it is then for the national courts in Ireland and elsewhere to apply the test and strike a balance between the rights of the owners of the original works and the rights of the creators of any parody work.

Somewhat controversially, another aspect of the CJEU’s ruling may limit the parody exception. The Court found that where a parody contains a discriminatory message, the rights holder of the original work has a legitimate interest in preventing its work from being associated with such a message.

As the interpretation of the national courts will play a decisive role, it may be that this decision will limit the protection of copyright holders by providing a clear definition for parodists to avail of. On the other hand, it may serve to provide rights holders with arguments to prevent parodies of their works without permission. Discrimination may be just the first of many other potential arguments that rights holders invoke in order to persuade national courts that the balance should be tipped in their favour.

The potential for different courts to reach different conclusions suggests that this will not be the last CJEU decision on the parody exception. The decision at the very least clarifies the basic characteristics for the legitimate adaptation of a work to be a parody, while preserving the ability of national courts to take into account local interpretation and perception of parody works.

Contributed by John Magee.

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