Parody on Copyrighted Works Could Be Infringement? I

the parodic portrait of ancient Chinese poet DU FU

On 7^th June, 2012, the committee affiliated to Agencies for Cultural Affairs deliberated on the issues that could the derivative works and parody constitute the infringement to copyright (note: the link is in Chinese). And that marks the Japanese government facing up to the common problems KUSO in the country.

As a country with well-developed culture industry, Japan sees a large number of original cultural creations within the nation every year, including the cartoons, movies, games, etc. On the other hand, the derivatives of the existing works are also common in the country with the parody included. The trend of parody in Japan also influences the literature works of China, and thereby we see Lin Daiyu, the character in the noted A Dream in the Red Mansion, becomes a courtesan, the Monkey King begins to date with his master, and the generals in the Romance of Three Kingdoms have all been coquettes.

In China, as the neighbor to Japan, the parody is also bursting and thriving in the country with the aid of Internet. Therefore, we see the Kaige Chen’s movie The Promise, the World of Warcraft and even the portrait of Chinese ancient poet DU FU has been parodied. It seems that the KUSO is everywhere in China. Then here comes the question that could the camp and parody on the existing works be kind of infringement? The post today and tomorrow will give our answer to it within the frame of Chinese legislations.

I. The definition of parody

Actually, “parody” is not a term on the law, while I find an entry in Black’s Law Dictionary 9^th Edition of the word. Parody refers to

“A transformative use of a well-known work for purpose of satirizing, ridiculing, critiquing, or commenting on the original work, as opposed to merely alluding to the original to draw attention to the later work”

After all, it’s just kind of definition in USA litigation, but it may also be the reference when handling the legal issues with the concept involved in China.

Basing on the concept clarified above, as well as the general principles in the Copyright Law PRC, such word could be defined as follows: 1) The creation of new works with the transformative use of the idea of the existing works; 2) the creation of the derivatives with the transformative use of the expression of the existing works, wherein the parody here is kind of adaption of the deduction right. Surely, besides these two definition, we also see another interpretation of the parody’s nature in law as kind of commenting way.

Of course, it’s necessary to clarify that the deduction in China laws is not limited to parody only. Just like the definition in the Black’s Law Dictionary, the purpose of the parody is to satire, ridicule, critique or comment on the original works, and the “deduction” in nature is kind of new work creation and follow use afterwards basing on the original ones with which basic expressions are maintained; therefore, the re-creation basing on other purposes or in other methods, like translation, production and compilation, accompanied with the parody (actually the adaption in law) are all the ways of deduction to works in Chinese law.

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