Copyright Bite #3 – Permission or Permitted

3.1

Dick has created an original artistic work protected by copyright. Typically the first author of a work will also be the first owner of the copyright in that work, although when you create work as an employee the copyright in the work may belong to your employer. Dick is a freelance illustrator. As such he is the first owner of the copyright in his drawing.
As the copyright owner, Dick enjoys the exclusive right to copy the work, issue copies of the work to the public, rent or lend the work, and communicate the work to the public whether online or in a broadcast. This means Dick can exclude others from doing any of these things without his permission, unless their use is otherwise permitted by law.
George is a successful entrepreneur who runs Crossover Culture, a company that specialises in the design and manufacture of toys and games that appeal to children and adults alike. He is always looking for new product development opportunities that tap into the cultural zeitgeist.
George thinks Dick’s robot has a certain neo-retro charm that many people will find appealing. He wants to bring it to market, and assures Dick that the toys will faithfully copy Dick’s original designs and drawings, albeit in 3D. They agree to do business and a contract is signed. Without Dick’s permission, George could not lawfully manufacture and sell his toy version of the robot.

3.2

When you own the copyright in a work you can assign the rights in that work to someone else, or license others to make use of the work in certain clearly defined ways.
An assignment involves a transfer of the ownership of the copyright in the work from one person to another. If Dick assigned the rights in his drawing to George, George would be free to deal with the copyright in whatever way he likes. However, their contract is not an assignment; instead, Dick has granted George a licence to make use of his work in the manufacture and sale of toy robots.
Licences and assignments can be quite specific about types of permitted activity (what you are allowed to do with the work), duration (for how long), and geography (where in the world you can make use of the work). For example, whereas an author might assign all rights in their literary work to a publisher, the publisher in turn might license different forms of commercial exploitation of the work to different third parties. A production company might secure the right to turn the book into a film. A print media company might pay to serialise the book in a magazine or in the weekend supplement of a newspaper. An overseas publisher might license the publication of the work in a foreign language whether in Europe, Asia or South America, and so on.
The licence that Dick has granted to George is for the manufacture and sale of toys, based on Dick’s robot. Rather than a one-off fee, they have agreed payment on a royalty basis. That is, every time George sells one of his robots Dick receives a small percentage of the profit. Also, as you can see from the different types of currency, the licence allows George to market and sell the robot on a world-wide basis; it is not tied to any particular geographic region.

3.3

Sally is an illustrator. She is fascinated by the phenomenon of crossover fiction, games and toys. Why do people think robots are cool? Robots aren’t cool, she thinks. And why are adults buying toy robots? Is it really okay for adults to indulge in childish pursuits?
Intrigued and inspired by the ‘kidult’ success of Dick’s robot, Sally decides to parody it to critique the way that contemporary society appears to encourage a blurring of the lines between adult and children’s culture and play.
She has a number of ideas for her parody. One idea is to re-present Dick’s robot as a clown, with the stereotypical red nose and squirting flower. After all, the essence of parody is humour, she thinks.
Another thought is to portray Dick’s robot in a manner that evokes Marcel Duchamp’s famous parody of Leonardo Da Vinci’s Mona Lisa. Duchamp’s parody, which he called L.H.O.O.Q., has itself been the subject of numerous subsequent parodies.
In the end, Sally settles on a depiction of the robot that also calls to mind Carlo Collodi’s Pinocchio, complete with the set of donkey’s ears that Pinocchio grew in Toy Land. When all is said and done, thinks Sally, if you are an adult who spends time playing with children’s toys you really are a bit of an ass.
Sally’s idea for a robot-Pinocchio-parody is given express form as she commits it to paper. It is original and protected by copyright. Her other possible parodies exist as ideas only and are not copyright-protected. They remain in the public domain.
Importantly, Sally is able to create her parody without having to ask Dick for permission. Dick owns the copyright in his work, and can prevent others from copying, publishing, renting or lending, or otherwise communicating his work to the public, unless their use is otherwise permitted by law. Sally has copied Dick’s work to create her parody, but she is permitted to do so by law. UK copyright law specifically provides an exception to copyright ‘for the purposes of caricature, parody or pastiche’. This means that it is lawful to create parodies that re-use works protected by copyright without having to obtain permission to do so from the copyright owners.

3.4

Making use of someone’s work to create a parody of that work, or of another work, is lawful in the UK. You do not need to ask the copyright owner for permission because copyright law permits you to make use of the work in this way. And there are plenty of other circumstances in which, under certain conditions, you can make use of copyright-protected work without permission. Collectively, these are referred to as copyright exceptions and they make up an important part of the public domain.
UK law contains a long list of exceptions to copyright. They permit, for example, quoting from a work to critique or review it, reporting newsworthy events, engaging in private study or non-commercial research, archiving and preservation activities, as well as a number of classroom and other educational uses.
Benefitting from these exceptions often turns on the concept of fair dealing. In other words, to rely on the exception your use of the work must be fair. Indeed, the general nature and scope of exceptions to copyright are that they do not interfere with the normal exploitation of the work by the author or the copyright owner. So, whereas there is no exception that lets George manufacture and sell toy versions of Dick’s robot without Dick’s permission, Sally is able to rely on the exception for parody (authors don’t normally let people parody their work for money).
Also, you’ll notice that even though Sally has created a parody of Dick’s robot, this doesn’t necessarily interfere with the commercial value of Dick’s work or the robot toys. Dick and George are still making money, despite the fact that Sally has parodied the work. Again, exceptions to copyright do not ordinarily prevent authors and copyright owners from commercially exploiting their work.
Or, think of a different kind of example: Duchamp’s parody of the Mona Lisa didn’t prevent Da Vinci’s work from breaking the world record for the highest insurance valuation ever received for a painting: $100million (and that was in 1962). Might Duchamp’s parody actually have added to the fame, notoriety and value of the Mona Lisa? It is possible, but difficult to know with any certainty.