This is a repost of my article that I published at MINCOV.COM on June 9, 2010.

In my article “Why Courts Should Not Allow the Parody Exception to Make a Parody of the Copyright Law”, I shared my view on why I believe that the circumstances in which one should be permitted to use a preexisting work, without authorization, for the purposes of parody, should be extremely limited. That article was based on a law suit brought by J.D. Salinger against a Swedish author whose work was a blatant attempt to parasite on a famous work.

Through a weird and symbolic coincidence, on the same day when the Canadian Government tabled the Copyright Modernization Act that includes the controversial “parody and satire” exception, LatmaTV posted on YouTube a parody ridiculing the support that the world is offering to the so-called “peaceful” Free Gaza flotilla.

To me, it was the perfect opportunity to test my own convictions, for the reasons that follow below.

1. I believe that it is a brilliant parody.

2. I believe that the cause behind the parody is righteous and deserving of support.

3. I recognize that a lot of work and creativity must have gone to create the parody (write the lyrics, distribute roles, record the song and shoot the video) and that it has great transformative value.

4. I believe that freedom of expression (speech) is of utmost importance.

5. Because I like the parody and because I think it serves the right cause, I have an urge to allow as many people to see it.

6. It is not inconceivable that the values of those who took part in creation of the original “We Are The World” video and of those who currently own the rights in the original song and in the original video would hold views that are diametrically opposed to those who call for public condemnation of Hamas and for support of Israel.

The question I asked myself was, if I was a judge who was not restricted either by the parody exception or by its absence, with all the views that I hold, if I was to decide on a claim of copyright infringement by the copyright owners against the parody makers, requesting a permanent injunction that could magically be so efficiently enforced throughout the Internet and other media, that I would cause the parody to become completely inaccessible worldwide forever if I decided that the parody was infringing – how would I decide the case?

I must admit that these were some terrible moments when I was trying to reconcile my seemingly opposing principles by trying to find a middle ground. However, I did not engage in this enterprise to look for easy answers. That is why I made sure that I could not get away with pronouncing the parody to be an infringement in the hope that my decision could not be efficiently enforced, so I could allow the parody makers a chance to look as heroes going against the system twice – first, by opposing the Israel-hating world, and second, by opposing copyright laws that tend to protect “the wrong people”. Hence the requirement that if I rule in favour of the copyright owner, then – without regard to additional requirements that usually surround granting of injunctions – I should erase the parody from existence, forever.

Finally, I convinced myself to disregard the issue of where I stand politically on the flotilla issue, and to return to the principles.

In principle, I agree with the decision in Michelin^1., where the Federal court cited New Brunswick Broadcasting Co. Ltd. v. CRTC^2., in which Justice Thurlow wrote:

“The freedom guaranteed by the Charter is a freedom to express and communicate ideas without restraint, whether orally or in print or by other means of communication. It is not a freedom to use someone else's property to do so. It gives no right to anyone to use someone else's land or platform to make a speech, or someone else's printing press to publish his ideas.”

No one's freedom of expression should trump individual rights (including property rights) of others. It would not be a justification for a terrorist who had taken hostages to claim that he only did so to tell the world about whatever cause he is pursuing, even though it is arguably one of the most efficient ways to make the world listen. It would not be a justification for an activist who set someone's car on fire to claim that he only did it to demonstrate his inner convictions of the evils of capitalism. In the same vein, using someone's intellectual property should not be justified by whatever noble political ends that the unauthorized user is pursuing.

On the other hand, as many have rightfully noted, using someone's work does not destroy it (as in the case of a burnt car) and may not necessarily have any serious consequences for the copyright owner (as would be in the case of being taken hostage). Should this change anything?

I would say that if it changes anything, it would be the degree of moral justification for the copyright owner to make a claim that would stifle the parody. Everyone should be justified to ask that the copyright owner not make the claim and to act accordingly (by exposing the copyright owner's viciousness, by instituting private boycotts or otherwise), if the owner does nevertheless make such a claim.

But once that claim is made, in other words, once the copyright owner has decided that his rights to the preexisting works are more important to him compared to the public outrage that would ensue, the copyright owner's claim should be no different from the claim of a burnt car's owner.

If I were to write the decision in such a case and if I were not bound by existing laws but only by my philosophy, this is what I would say:

“It is beyond reproachful that the copyright owners should wish to stifle such a socially important parody, but it is their right to determine the terms on which their property is used by others, and I have no choice but to grant the permanent injunction.”

^1. Compagnie generale des etablissements Michelin – Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (1996), [1997] 2 F.C. 306, 124 F.T.R. 192 (F.C.T.D.)

^2. [1984] 2 F.C. 410