Parody exception

The parody exception allows, without the author’s consent, the parody, pastiche and caricature of a disclosed work, “having regard to the rules of the genre”. It is provided for in Article L. 122-5, 4° of the French Intellectual Property Code and corresponds to Article 5(3)(k) of Directive 2001/29/EC. It expresses the balance struck between the author’s monopoly and freedom of expression, of which humour and satire are protected forms.

Conditions of the exception

The Court of Justice of the European Union (« CJEU ») holds that parody is an autonomous concept of EU law whose essential characteristics are, first, to evoke an existing work while being noticeably different from it and, second, to constitute an expression of humour or mockery. It requires neither originality of its own beyond those differences, nor mention of the source, nor that the parody relate to the parodied work itself rather than to another subject. French case law, which predates that definition, applied similar conditions: humorous intent, no likelihood of confusion with the original work and no intention to harm. Those requirements continue to be applied as an expression of the rules of the genre, in so far as they do not narrow the European concept.

Limits of the exception

Parody does not cover the reuse of a work for purely commercial or advertising purposes devoid of any humorous dimension, nor a borrowing that creates confusion with the original, nor a distortion of the work serving a discriminatory or degrading message that the author has a legitimate interest in not seeing associated with the work, the CJEU requiring courts to strike a fair balance between the interests at stake. Moral rights remain a safeguard: parody by its nature alters the work, and on that point the exception neutralises the right of integrity, but it does not legitimise an attack on the author’s honour or reputation. In trade mark matters, the absence of an equivalent statutory exception leads the courts to reason on the basis of freedom of expression and of use in the course of trade.

Litigation

Parody is a defence to an infringement action, and the burden of proving it lies on the defendant. The court assesses in concrete terms the humorous intent and the likelihood of confusion, having regard to the relevant public. The three-step test remains applicable, but it is hardly suited to defeating a parody which, by definition, does not substitute for the original work on its market. Content-sharing platforms must preserve the use of this exception by their users, which makes it a central issue in automated filtering.

Key points

A parody is lawful where it evokes the work while clearly differing from it and displays humorous intent, without confusion or intention to harm. It does not cover mere commercial misappropriation. Before exploiting a parodic creation, check that the humour is perceptible to the public, that the original is not reproduced beyond what is necessary and that the message does not harm the author’s honour.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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