Parody on Copyrighted Works Could Be Infringement? II

the poster of the parodic World of Warcraft

II. Is it necessary infringing of parody?

Just like analyzed above, the “transformative use” may be the re-creation basing on the ideas, and also could be the re-creation relying on the “expression”. Therefore, the infringement of parody could not be determined in general and should be considered in situations.

1. The parody with transformative use of idea

The basic principle of Copyright Law is to protect the expression while such protection will not extend to the idea which is not detailed by the expression. Surely, there has regulated no specific standard or border between the abstract of idea and the concrete of expression, and that makes the judgment depend on the case analysis.

Also to take the Monkey King as the example, in the Japanese version of the story the monkey dates with his master who then is described as a female. So given this story just re-declared the relationship between the figures, with other elements of the works, such as the design of the plots, characters and other aspects remained, and then such “transformative use” is mainly focusing on the expression. For the legal liability of it, we would discuss latter. While if the story is with a totally new structure, with the characters, plots and the relationship among the characters have all been changed, whereby a new works is created with only the idea of “Journey to West” is kept.

But it shall also be clarified that the works of Journey to West has ready in the public domain, while given it’s still outside the public domain, the re-creation of the idea may lead to the unfair competition liability though the no liability of copyright infringement shall be taken.

2. The parody with the transformative use of expression

As discussed above, the transformative use of expression is kind of adaption in the Copyright Law of China. So, it’s not difficult to understand that the lawful adaption shall first be approved by law or licensed by the right owner, otherwise it could be forbidden as violation against the law.

Among the lawful use, according to the Copyright Law, the adaption agreed by law could only be the fair use, which is mainly regulated in Article 22 of the Copyright Law, and with no transparency provisions in it. That means the fair use could only be such 12 situations by China laws, and not analogy or compare use of shall be made under the existing laws and regulations.

In these 12 situations, the most related article to the parody (adaption) is the Item 2 of Article 22’s 2^nd paragraph,

“appropriate quotation from a published work in one’s own work for the purposes of introduction to, or comments on, a work, or demonstration of a point; ”

It could be concluded from the regulation that the parody’s border shall line on the appropriate quotation.

There’s also the opinion that “generally, in the fair use, the length and importance of the quoted part in the original works shall be put into the consideration and wherein the higher the percentage in the original works or closer to the core position in the original works of the adapted ones, the less reasonable of the fair use in such situations.” But, to my opinion, the length and importance of the adapted part are not the only considerable parts with the degree of the transformative use shall also be one of the standards of judgment.

3. Another situation of lawful parody

In addition to the license or approval by law, I also notice a third situation of lawful parody complying to the existing Copyright Law and its theory. It will be difficult to prevent other’s adaption on the works after its publication, for that could only be detained when the adapted one is publicized. Therefore, it might be concluded that the adaption right is to regulate the follow use after the unlicensed or unlawful adaption rather than the adaption itself.

Once the party adapts the works solely for the personal study, research or appreciation, and therefore no publication will be made, the right owner could have no way to detain such adaption, whilst it damages no interests of the right owner at all. So when in such situations, the copyright owner could have no way to regulate the parody. Also, such adaption is among the fair uses regulated in Article 22 of the Copyright Law. Certainly, when the party sells its unlicensed or unlawful adaption for benefits, it could be judged illegal as it might influence the benefits of the original works.

In short, the parody is not a derogatory or negative concept in culture, while the reading and creation of the parody has been an amazing entertainment ways for the young persons. And on the other side, the parody is not naturally and necessarily the twins of infringement. To my opinion, it will be ok once the humor of parody could be controlled to a legal scope.

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