Improper parody of creative work can cost a lot

Authors: Erikas Saukalas, partner at METIDA, attorney-at-law, head of International Relations Division, court mediator; Aurimas Sobutas, Junior Lawyer at METIDA

13433138_1412062255477955_8469524614118924972_o1The Law on Copyright and Related Rights, as currently in effect, establishes that any use of creative work (for example, song lyrics, photos, graphics, etc.) without permission from its author, his assignee or a person duly authorised by him, is considered unlawful. It is interesting that until the amendment to the Law on Copyright and Related Rights, dated 21 December 2011, the said permission was not required if an object protected by copyright, including lyrics of a musical piece, was used for a parody aimed at mocking, ironic portrayal of the parodied original piece. According to the case law, as established until then, a parody had to be original, it could not compete with the creative work and could not unreasonably infringe upon lawful interests of the author or another copyright holder (first of all, it could not discredit the author of the creative work and the very creative work, which was parodied).

However, on 21 December 2011, the legislator changed its position. After the adoption of the amendment to the Law on Copyright and Related Rights, the use of creative work, for example, song lyrics, for a parody without permission from its author, his assignee or a person duly authorised by him, was prohibited. Please note that legal acts of the European Union allow the legislator of each country to choose either to apply or to opt out of such prohibition.

Therefore, according to the currently effective copyright regulation, any use of creative work protected by copyright for a parody infringes upon authors’ rights and is prohibited. An example of use of original creative work could be the case of the group PaSELiai, when in a music clip published online, where they parodied the music group SEL, they also used song lyrics of SEL (see https://www.youtube.com/watch?v=jIY9ea2csNM). In this case, the group PaSELiai had to obtain permission from the author of those song lyrics, his assignee or a person duly authorised by him. If no such permission was obtained, public performance of the said song lyrics in the published video record is unlawful and the author of those song lyrics, his assignee or a person duly authorised by him has the right to defend his infringed copyright.

In spite of the fact that the use of song lyrics or other original creative work for a parody is prohibited in Lithuania, the use of the singer’s performance, which manifests in creative rendering of a song or another object protected by related rights (for example, actor’s, conductor’s or dancer’s performance), for creation of a parody is possible without permission of related rights holders and without remuneration, however indicating, if possible, the source and the performer’s name and not degrading his honour and dignity. An example of such use could be a performance by the singer Natalija Zvonke, which was imitated and treated with irony by producers of TV show Dviračio sou, where they did not use lyrics of songs performed by the singer (which are protected by copyright) and indicate the singer’s name (see https://www.youtube.com/watch?v=gQJM2R888YM).

In summary, before creating a parody, it is recommended to evaluate two aspects. At first, one must establish whether any objects protected by copyright or related rights will be used for the parody. If yes, one must analyse in detail the objects, the use of which is permitted, and the conditions under which they can be used, and the objects, the use of which is prohibited. If these aspects are not taken into account, there is a risk that parodists may not only have to stop unlawful use of such objects, but may also end up having to compensate for damage.

 

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