This article is a continuation and conclusion of a piece that appears in the current (O ctober 2022) print issue of Broadcaster Magazine, entitled Parody and Satire Added to Canada’s Fair Dealing Defence, written by Doug Murray, assisted by Marco Figliomeni.
Since Canada’s new and improved Copyright Act came into being on November 7, 2022 one of the amendments that’s garnered a great deal of excitement (mostly, at this stage, in the form of legal articles singing its praises) has been the addition of parody to Canada’s fair dealing exceptions to copyright infringement.
In Dr. Seuss Enterprises, LP v Penguin Books USA, Inc., 109 F 3d 1394, 1401 (9th Cir 1997), the Court held that a spoof of The Cat in the Hat, which used Dr. Seuss’ text to mock the OJ Simpson litigation, could not satisfy the fair use test because Dr. Seuss’ original work was not, even in part, a target of the new work.
Satire as “Fair Dealing” in Canada
The US courts have found that a satire still needs to target, at least in part, the works that it copies in order for it to be permitted. But will that be the case in Canada? Will our satires have to be, at the very least, indirect critiques of the original work or else be considered copyright infringement?
Had the Canadian legislators stopped at parody, I would have said yes. However, by expressly including satire as an allowable purpose, I would suggest that the Canadian courts will have a difficult time limiting permissible satires to those that take a run, even if indirectly, at the original creation.
Consider song parodies. We hear them all the time. And while many of them target the original song or singer (ie. Weird Al Yankovic’s take on Lady Ga Ga’s “Born This Way” called “Perform This Way”), many others (ie. Using the tune from Gotye’s “Somebody That I Used to Know” for a poke at the second Star Wars Trilogy called “The Star Wars That I Used to Know”) have nothing to do with the original song and are instead just using it as a catchy, if not funny, vehicle to poke fun at or criticize something else entirely. Without targeting the original, the latter can’t be considered parodies, but if sued for copyright infringement in Canada, could the new song’s creator successfully use satire as a defence?
I would say yes. First, by relying on the authority of CCH Canadian Ltd., one could argue that the courts must not give the fair dealing provisions, including the new additions of parody and satire, a “restrictive interpretation”. As the definition of “satire” itself, unlike parody, contains no reference to critiquing any specific work, but instead is regarded by Oxford’s as “the use of humour, irony, exaggeration, or ridicule to expose and criticize people’s stupidity or vices, particularly in the context of contemporary politics and other topical issues”, it would be difficult for the copyright holder to argue that the new version was not created for an allowable purpose.
How “Fair” Will Satire Have To Be in Canada?
The second part of the test for fair dealing is whether or not, even if for an allowable “purpose”, the use in question is “fair”. The six factors to be considered for fairness are (i) the purpose of the dealing, (ii) the character of the dealing, (iii) the amount of the dealing, (iv) alternatives to the dealing, (v) the nature of the work, and (vi) the effect of the dealing on the work. Of these, one would expect that the most difficult consideration for a “spoof” song to overcome would be the fourth, being to what extent there were alternatives to using the tune in question. Certainly, if one wants to make a vital statement about Star Wars, rednecks or the government of Botswana, any musical track will do and this is where the copyright holder will have its strongest argument as to why the use of their particular song is unfair.
However, I would suggest that the courts will, in the case of satire, have to put little or no weight on that particular factor. To do otherwise would seem to be contrary to the inclusion of satire itself as an allowable purpose. If the legislature had intended that there need be a connection to the original work, they could have simply added parody to the list of allowable purposes and been done with it. But they added satire which is, by definition, not tied to any particular work and which, under CCH Canadian Ltd., must be given a “large and liberal interpretation to protect users’ rights”.
In order to strike a balance between the rights of copyright holders and users when dealing with satire, the courts will likely put greater weight on the other “fairness” factors, including whether there is evidence that the new version has had any effect on the market demand for the original and whether the satirist has used more of the original than is necessary to achieve their purpose. Again though, if the purpose itself is satire, to be too restrictive as to how much of an original work can be used in its service would make its inclusion pointless. Bottom line, with satire now enshrined as a separate, allowable purpose, Canadian courts may find that they will have little choice but to allow a wide range of satirical works, including songs, sketches, TV shows, web series, movies, books and plays to copy, take, lift and sample even if there’s no real connection to the original material they’re using.
Doug Murray is a TV, film and music lawyer with the law firm Taylor Klein Oballa, a Toronto entertainment and new media firm representing Grammy-winning recording artists, Academy Award-winning producers, and various new media and tech companies (www.tkolawyers.com).
The views and opinions expressed in this article are not meant to substitute for legal advice, which should be sought in each particular instance.