ABSTRACT

The first issue to which I should address myself is the question as to how far a parody is an infringement of copyright. Mr Prescott observed in the course of his submissions that it is hard to see how a parody could ever be an infringement and this has been canvassed to some extent, in the authorities. Before I look into them, I call attention to two features of parody or burlesque. First of all, it is to be observed that the parodist of the successful parody does himself do a lot of original work in parodying the first work and so can be said to create a new and original work. Of course it has necessarily to conjure up the old or it would fail as a parody, but it is commonplace in this branch of the law that copyright resides not in ideas, but in the expression of them. So the parodist may take an idea and from it a completely new and original work may be created. Another element of this is that the parodist may be indulging in literary criticism or review of the original work. This latter point, however, does not arise in the present case, because that was not the purpose of the compilers of the advertisement, so I need not deal with any sort of defence under s 6 of the Copyright Act, that is, the fair dealing exception.