The hills are alive with the smell of baking
With cakes that we baked for a thousand years
The hills fill my heart with the love of baking
I just want to taste every cake that I baked.

These are the lyrics in the recent trailer for the Great British Bake Off in which the programme’s presenters re-enact a scene from the Sound of Music and sing a new version of the title song “The Sound of Music” to what would appear to be the same music as the original.

The lyrics (written by Oscar Hammerstein II) and the music (written by Richard Rodgers) from the original song are still protected by copyright and the owners objected to the BBC’s use of their copyright works without a licence. The BBC claimed that it used the recent fair dealing exception for parody which, if correct, would allow it to use copyright material without a licence from the copyright owners. The trailer is no longer being shown on the BBC but it is not clear whether this was as a result of the copyright owners’ objections or because, as the BBC suggest, it had finished its planned run of three weeks.

What is a “parody” for the purposes of the above exception?

Section 30A of the Copyright, Designs and Patents Act 1988 (CDPA) states that “Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work”. Section 30A of the CDPA was inserted into the CDPA fairly recently on 1 October 2014. The term “parody” is not defined in the CDPA.

Section 30A stems from the European InfoSoc Directive. The InfoSoc Directive sets out various rights that Member States should ensure are given to authors of works but also allows Member States to allow for exceptions in certain circumstances. Article 5(3)(k) of the InfoSoc Directive states that “Member States may provide for exceptions or limitations to the rights provided for…in the following cases: …use for the purpose of caricature, parody or pastiche.” The term “parody” is also not defined in the InfoSoc Directive.

The Court of Justice of the European Union (CJEU) was recently asked to determine the meaning of the term “parody” in Deckmyn v Vandersteen and Others. The CJEU stressed that the term “must be regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union”. Given that there is no definition in the InfoSoc Directive, the CJEU found that the term must be “determined by considering its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part.

Leaving aside whether or not lawyers are best equipped to decide on such matters, the CJEU went on to state that the essential characteristics of parody, are, “first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery”. Further, application of the exception for parody “must strike a fair balance between, on the one hand, the interests and rights of [the copyright owner]…, and, on the other, the freedom of expression of the user of a protected work who is relying on the exception for parody.”

So is the Great British Bake Off trailer a “parody”?

Under the CJEU definition, the original work is clearly evoked, you can see clear differences between the lyrics of the two songs and it is, arguably, humorous and/or self-mockery.

One clear issue, however, is that the music underlying the song (which is a separate copyright work from the lyrics) appears not to have been adapted and, even if it had been, it is difficult to see how the music (as adapted) could “constitute an expression of humour or mockery” on its own. It may well be that the courts would treat this trailer as a whole rather than separating it into its constituent works and find that as a “whole” it is a parody. The owner of the copyright in the music may well feel aggrieved by such a result given that his work has not been parodied at all it has simply been included next to a parody of the lyrics.

As to whether applying the parody exception to this trailer would be seen to strike a “fair balance” between the competing rights is anyone’s guess. The fair balance test is so wide a concept that its application around the EU may well lead to widely varying results in different Member States.

Without some practical examples from the courts on the application of this test or a case with similar facts it is difficult to say with any certainty whether this trailer would be likely to be seen as a parody. The BBC may have dodged the bullet this time but at some point someone will bring such a matter before the courts and that will allow us to learn more about the extent of this exception. Until the boundaries of this exception are clearer it is best to be wary of relying solely on the parody exception.

If you wish to discuss any of the issues raised in this article please contact Nick Phillips – Partner, Charlie White – Associate, or any member of the Edwin Coe Intellectual Property team.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

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