Parody and Free Speech in Vancouver
People always ask me whether parody is allowed under Canadian copyright law, and I usually say that the CCH case (Supreme Court 2004) is a strong sign that it would be, since criticism is one of the stated purposes for fair dealing, and since CCH says that those purposes ought to be liberally interpreted. This would seem to be a slap on the wrist to the Federal Court Michelin case of 1996, which rejected the CAW’s fair dealing argument for the use of the Michelin Man on union posters. The Michelin court declared that the fair dealing purposes had to be interpreted narrowly, and that parody was not criticism.
But of course, CCH isn’t a case about parody directly, and so it’s been a grey area, vulnerable to (God forbid) judges and lawyers. People keep doing it, since it’s such a powerful tool of critique, but at their own risk. As Carel Moiseiwitsch and Gordon Murray have found out: in 2007 they put out a parody issue of the Canwest-owned Vancouver Sun, in order to critique its pro-Israel bias. The 4-page paper looks like the Sun, but it could hardly be confused with it, dated as it is Occupation Day, June 2007, with bylines by the likes of Cyn Sorsheep and P. Rupa Ghanda. The weather forecast is for “summer rains with occasional missile showers and chance of tank shelling in the afternoon,” and the guide to articles “Inside” lists “CEO Ass Kissing,” “Right Wingnut Rant,” and “Poor Bashing” among other delights.
Canwest sued. Their claims don’t make a lot of sense to me: they allege copyright infringement, I guess in their logo, passing off, and trademark violation. It does seem more like a trademark issue, as the parody doesn’t reproduce much if any of the Sun’s verbal content. But it doesn’t look like a good fit for trademark violation because the likelihood of consumer confusion is very small. The parody may be effective, but subtle it isn’t.
In a pre-trial ruling, Master Donaldson struck some paragraphs from the defendants’ statement. It looks to me that in their absence the defendants will still have a strong case, but I sure hope the Master’s reasoning isn’t followed at trial. He takes the opportunity to say that the parodists cannot avail themselves of a claim to freedom of expression because the Michelin case said they couldn’t. On the fair dealing front, we might note that Justice Teitelbaum did distinguish the union poster cartoon from what he considered, properly, criticism: “Criticism requires analysis and judgment of a work that sheds light on the original.” Surely this is entirely the point of the Vancouver Sun parody. Maybe it would have fared better than the union poster, even in the 1996 Federal Court. And on the Charter front, there’s some pretty wacky stuff in Michelin about private property that surely could hardly be considered gospel. This one case can’t shut the door on all future inquiries into the constitutional dimensions of copyright. It may be that in court Canwest’s motives are not material, but to those of us in the real world, this lawsuit sure looks more like a move to shut down free speech than a defense of copyright. Let’s hope there’s some room to air the possibility, at least!
Moiseiwitsch & Murray’s lawyers have appealed the pre-trial ruling; we await further news; and we hope they don’t run out of money.
For more info, see Howard Knopf’s discussion and the seriouslyfreespeech blog.
