Parody versus adaptation: Clearing the lines in music copyright
Shaira Moro’s viral hit song Selos, meaning “jealousy” in English, is now back on streaming platforms after resolving a copyright issue with Australian singer-songwriter Lenka, the composer of Trouble is a Friend, the melody used in the Filipino song. Dubbed the “Queen of Bangsamoro Pop,” the Mindanao-based singer found herself in hot water following copyright infringement claims from Lenka for sounding too familiar with her chart-topper.
While AHS Channel, Shaira’s music agency, claimed the song to be a parody, some industry experts said that listening to both songs concluded that Selos is an adaptation of a copyrighted work since a substantial portion of the song’s melody was adapted without permission from the copyright owner.
But what is the clear line between parody and adaptation? What elements make something a clear parody or adaptation?
According to Bienvenido Marquez III, a partner and head of the IP, data and technology practice group at Quisumbing Torres in Manila, there are no laws defining the term “parody” in the Philippines, nor are there Supreme Court cases directly addressing this issue.
He said: “In the Philippine context, a parody may be regarded as a form of commentary or criticism protected under the context of the fair use doctrine, which allows the use of a copyrighted material in a reasonable manner even without consent from the copyright owner.” However, he pointed out that Shaira’s song was not a parody as it was not released to ridicule, critique or comment on Lenka’s song.
“The lyrics of the two songs differ – one is in English while the other is in Filipino. Moreover, the meaning of each song differs: Selos is a song about feeling jealous after seeing the person they like with another, while Trouble is a Friend talks about how trouble is a constant part of life,” explained Marquez. “The melody that was copied by the song Selos was not made to make a reference to the original song but was instead modified to create a new song, which she released as her own for commercial purposes. Thus, the lack of commentary or criticism on the original work and the commercial motives behind the song Selos strengthens the argument against fair use.”
Marquez emphasized that these factors suggest Shaira used Lenka’s song to “gain attention or to avoid the effort of creating something original,” constituting an unauthorized adaptation of the original work. He said simply crediting Lenka in the song’s disclaimer is insufficient.
“Moreover, parody typically involves transforming an original work to comment or criticize it, which is not the case with the song Selos. If it were a parody, Shaira could have arguably used the song without the original composer’s permission under the doctrine of fair use. The admission by Shaira’s music agency that the melody of the song Selos was derived from Lenka’s Trouble is a Friend is an admission of direct copying of a protected work without proper licensing or permission from the author. While fair use exceptions can apply to an original work, the new work must be transformative or must comment on the original work, which is not present in this case,” he said.
Parody or adaptation
Like the Philippines, in Australia, the distinction between parody and adaptation for whether a particular use of copyrighted materials falls within the country’s fair dealing exception will depend on whether the infringing material serves as a genuine piece of critique or mockery rather than an attempt to profit unfairly from another’s work under the guise of criticism.
“That the infringing work is humorous, or even is a parody, will not necessarily satisfy this purpose where it may fairly be concluded the intent of use is for the commercial exploitation of the original work in a modified form,” said Marco Angele, principal at Marshalls Dent Wilmoth in Melbourne.
He mentioned a relevant case in Australia in 2019 concerning the use of parody, which involved the United Australia Party’s political campaign featuring the song, Aussies Not Gonna Cop It, in its advertising. The song contained a reproduction of a substantial part of the song We’re Not Gonna Take It owned by Universal and originally performed by Twisted Sister.
“Australia does not have a defence of fair use for copyright infringement but does have a narrower concept of ‘fair dealing’,” said Angele. “The United Australia Party (UAP) sought to rely on the defence of fair dealing for the purposes of satire under section 41A of the Copyright Act 1968 and were unsuccessful due to the use of copyrighted works being neither fair nor for the purpose of parody or satire. Justice Katzman stated that ‘the sole purpose to which the copyright works were put was to underscore the UAP’s key campaign message and to rally the faithful and the disaffected to the UAP’s cause.’”
He added: “The interesting thing about this judgment was the calculation of damages and clarification on the application of the ‘user principle’, a remedy that requires the respondent to pay a notional licence fee for use of the work. There has been some uncertainty about whether the ‘user principle’ could be applied if the party relying on it wouldn’t have granted the licence in the first place. However, this uncertainty was dispelled. Even though the parties would not have been able to reach an agreement with respect to a licence fee, the user ‘user principle’ was still available as a remedy.”
In Singapore, adaptation has a specific meaning under its copyright act. For instance, for literary works, an adaptation could be a version of the work in dramatic form, a translation of the work or a version of the work in which a story is conveyed through pictures. For a musical work, an adaptation is an arrangement or a transcription of the work. Parody, on the other hand, is not defined in the copyright act. A Guidance Note on copyright exceptions issued by the UK Intellectual Property Office specified that “parody imitates a work for humorous or satirical effect.”
“An adaptation of a work could potentially be a parody of the same if an element of humour or satire is added to the mix,” said Pin-Ping Oh, a partner at Bird & Bird ATMD in Singapore.
“However, there is no bright-line test, and the courts have cautioned that it is necessary to take a strict approach in assessing whether a particular secondary work qualifies as a parody to avoid weakening the protection conferred by copyright. There must be some element of ‘targeting’ the existing work before a secondary work can be considered a parody.”
Where parodies are concerned, she added that the Singapore Court of Appeal cited with approval a U.S. Supreme Court decision, which held that it was fair dealing for the defendant to write a song whose lyrics satirized the song Oh, Pretty Woman, for instance, on the basis that the use had transformative value. “This suggests that our courts may be inclined to look favourably upon an argument that a parody constitutes ‘fair use’ of a copyrighted work,” she said.
No clear distinction?
While the Philippines, Australia and Singapore have some laws for parody and adaptation, parody culture is not very popular in China. Thus, the Chinese copyright law currently does not make any provisions for parody, and the term parody is rarely used in legal practice.
Cherry Guo, a senior partner at Tiantai Law Firm in Beijing, shared the case of adaptation of novels or stories where, for example, the relationship between the characters, the character traits and some of the storylines could be similar. For this case, one court held that the defendant’s actions did not constitute copyright infringement but constituted unfair competition. On the other hand, another court overturned this decision and found that the defendant’s acts constituted both copyright infringement and unfair competition.
The second judgment of this case made a breakthrough in identifying the character image, which included elements, such as character names, personality traits and character relationships, as “expressions” under the copyright law. This decision expanded the scope of protection of the copyright law to cover character images, guiding the creation of a large number of fan works based on characters from the original work.
“The boundaries between parody and adaptation are not clear, and there is actually a certain overlapping range,” said Guo. “According to Black’s Law Dictionary, a parody is ‘a transformative use of a well-known work for the purpose of satirizing, mocking, criticizing or commenting on the original work’ while adaptation refers to the creation of a new work of originality by changing the form or use of the work based on the original work.”
She added: “Therefore, if in the process of parody creation, the imitation and use of the original work are not limited to the ideological scope of the original work but add its own new originality on the basis of retaining the original expression in the original work, the parody work belongs to the adaptation of the original work and constitutes a derivative work of the original work.”
In India, the law doesn’t use parody as a clear terminology, but it can be read from the concept of fair dealing under the Indian Copyright Act. Some landmark judgements dealing with parody have been in cases that primarily deal with trademark disputes. Adaptations, meanwhile, have been defined under the Indian Copyright Act. “Since adaptations involve a wide gamut of works, which are developed based on the original work, they bring into their fold the remake films as well,” said Chandrima Mitra, a partner at DSK Legal in Mumbai. “In India, there are various litigations involving unauthorized adaptations of literary work into film or unauthorized remakes of films into various languages.”
While parody is not defined under the Indian copyright law, adaptations are. “However, both parody and adaptations base themselves on the use of pre-existing works. Certain elements like imitating the style or characteristics of the original work, exaggerating them for comic effect and criticizing or ridiculing the original are usually the markers for a parody whereas in the case of an adaptation, there are always modifications to the original work to create the new work,” she said.
Fair use
Lirene G. De Los Reyes, an associate in the corporate and commercial and M&A practice group at Quisumbing Torres in Manila, said that regarding fair use, the court has been using the four-factor test, which is found in Section 185 of the IP Code of the Philippines. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:
“This is an exact reproduction of the factors listed in the counterpart provision of the U.S. Copyright Act of 1976,” she said. “Thus, given the lack of Philippine case law with regard to the doctrine of fair use, the courts have generally used U.S. jurisprudence as reference and guidance in its decisions.”
She explained: “The four-factor test was used in the case of Campbell in ruling in favour of 2 Live Crew. This landmark case established that a commercial parody can qualify as fair use. The court did not weigh the commerciality of the parody against fair use because of the parody’s transformative nature. The court noted that there must be a determination whether the new work merely supersedes the objects of the original creation, or whether it was transformative enough to alter the original with new expression, meaning or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
She added: “About the fourth factor, the court ruled that it is unlikely that the parodied work will act as a substitute for the original since the two works usually serve different market functions. It was improbable that any artist would find any protectable derivative market in criticism since they would not license critical reviews of their own productions, noting that artists ‘ask for criticism, but only want praise.’ Thus, since a parody is usually commercial in nature, it is important that it has a transformative value by adding a new meaning, expression, or message to the copyrighted work. The transformation can involve altering the purpose, character or context of the original in a way that still comments or criticizes the original work.”
In Australia, the notion of “transformative” use of copyrighted works is derived from the U.S. doctrine of fair use and is not applicable. For creators seeking to rely on the affirmative defence of fair dealing to apply in the realm of parody, two elements must be established. Dealing with the artistic work must be ‘fair’, and such dealing must be for parody or satire.
“What is considered fair in its effects for the copyright owner will depend on the unique circumstances of the parody use,” said Angele. “This involves the consideration of the nature of the work, the character of the dealing and the relevant purpose of the work to make an assessment of whether a fair-minded individual would deal with the copyrighted material in that manner, objectively considered. The assessment of ‘for the purposes of parody’ is as stated.”
He added: “This determination will turn on the facts of a given case, but the commercial exploitation of an original work through parody undermines both the argument that a particular use is ‘fair’ and that is ‘for the purposes of parody’.”
In China, Article 24 of the copyright law stipulates the scope of application of fair use in 12 specific circumstances and a one-catch-all clause. Therefore, a parody that satisfies one of these 12 specific circumstances (including self-appreciation, appropriate citation, newspaper reprinting, scientific research and Braille translation) constitutes fair use.
“With respect to the catch-all clause, it can be used for some special circumstances where it is truly necessary to promote technological innovation and commercial development, taking into account factors such as the nature and purpose of the use of the work, the nature of the work being used, the quantity and quality of the part being used and the impact of the use on the potential market or value of the work provide that the use does not conflict with the normal use of the work and does not unreasonably harm the legitimate interests of the author,” said Guo. “In addition, in recent years, there have been a number of cases in which Chinese courts have cited these four elements to determine fair use. So, if parody meets the relevant conditions for the determination of the above four elements, it can also constitute fair use.”
When producing parodies or adaptations
Mitra said that content creators should take note of the following when producing parodies or adaptations to avoid copyright infringement. “For all adaptations, permissions or licences must be sought from the copyright holder to use the original work,” she said. “Creators should obtain a written licence or agreement specifying the scope of use, duration and any associated fees and keep thorough records of all communications and agreements for legal protection.”
However, Indian courts have not laid down any specific steps that creators can take to minimize the risk of copyright infringement when producing parodies. She said that any creator should keep in mind the following to mitigate the risks of any copyright infringement:
Ensure transformative nature. Creators should ensure that the parody adds significant original expression and commentary, making it sufficiently transformative from the original work. Creators should avoid verbatim copying or excessive replication of protected elements as this could increase the risk of infringement claims.
Include disclaimers. Creators should clearly label the parody to avoid confusion with the original work by including prominent disclaimers stating that the work is a parody, not endorsed by the original copyright holder, and not intended to infringe upon their rights.
Marquez added that if the work is a parody, the creator should understand the concept of fair use and the four factors that the court considers in determining whether it is protected under copyright. “It is also important that the parody is transformative in nature and that the creator creates something new and different in its meaning, message or context,” he said. “They cannot merely copy the original work – it is essential to comment or criticize the original work in order to qualify as a parody. In addition, while some degree of copying may be necessary to create a parody, it must still be a reasonable amount and should not entail excessive use of the original material. According to the court in Cosac, if the new work clearly has transformative use and value, a finding of fair use is more likely, even if the user stands to profit from his or her new work.”
He added: “Furthermore, fair use doctrine allows the use of an original work for parodies without the original author’s consent. However, it is still advisable to attribute the original work to help the audience easily identify its source. Moreover, while not necessary, obtaining permission from the copyright holder may also help prevent potential disputes.”
If it is an adaptation, it is important to obtain permission from the copyright holder, which involves negotiating a license and paying royalties. “Understanding the concept of fair use is also essential to determine whether the use of copyrighted material can qualify as one of the exceptions to copyright infringement,” said De Los Reyes. “Additionally, it is worth noting that the term of copyright protection under the IP Code is during the life of the author and for fifty years after his death. Once this term expires, the work becomes part of the public domain which can be freely used by anyone without the need for permission or payment of royalties. Thus, it may be used by another without the risk of copyright infringement.”
“As there is a dearth of cases in Singapore on the exact ambit of the ‘fair use’ defence and given that the defence is highly fact-based to begin with, there is uncertainty as to when it will apply,” said Oh. “Bearing in mind what the courts have said about the meaning of ‘parody’ and the ‘fair use’ factors, some guidelines for creators would be to ensure that the existing work is the target of the humour or mockery and that not more of the work is taken than is reasonable for this purpose.”
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