IP & Art

A few years ago, it has become a hot topic by parodying the Hallyu drama, which has been very popular in China due to its simultaneous airing in China. Parody has a positive side, contributing to the development of the cultural industry by expressing useful information or various values to society through criticism of the original work. If so, to what extent is parody permissible under the Copyright Act?

Parody refers to a literary or musical work that mimics the style of an author or work for humor or ridicule. It is one of the areas of creative activity that creates a new type of work through humorous criticism using famous works.

Parody is said to have originated from a Greek word meaning 'next song'. Historically, the satyr play (a genre of ancient Greek play) is said to be a representative example of parody. This is the fourth play of a four-part play performed in ancient Greece. Following the tragic trilogy, it is a comedy in which the choir sang the Hymn of Dionysus as they danced and dressed up as half-god satyrs of the forest.

Parody-like forms include burlesque, pastash, and satire. Velesque is a kind of parody or mockery as its essential requirement, and pastash means hybrid imitation. And satire refers to pointing out foolishness and promoting lessons or social improvement. Parody is broadly divided into direct parody, which uses the original as the object of criticism, and mediated parody, which uses the original as a means of criticism, but criticizes general phenomena in modern society that are unrelated to the content of the original.

Conditions for parody to be established

Regarding the protection of parody, there are two main positions. One is to protect it as a secondary work, and the other is to protect it by the restriction of copyright according to the fair use theory. Looking at the legislative examples of each country, Germany protects parody only when it is created as an independent work. In the United States, it is analyzed according to the fair use law to determine whether to protect it. In the case of France, after the publication of a work, there is a stipulated provision that protects them against parody, pastash, and caricature.

What are the conditions for a parody to be established? First, there must be an original work. It should be as prominent as possible. And the parody must be transformed. However, the concept of transformation should be recognized more broadly. And the parody must have creativity that is distinct from the original work. However, in which cases to recognize it as a parody, it has no choice but to determine individually and by synthesizing specific circumstances.

In judging whether a parody copyright is infringed, it is necessary to review the moral rights, that is, the right to display the name and the right to maintain the sameness, as well as the general copyright infringement.

First, looking at precedents regarding the right to maintain identity, there is the case of Lotty, the mascot of domestic Lotte. A dispute arose during the revision and correction work while the conspirators transferred all rights to the operator who conspired for the copyright for the character Lotty, which was selected as the winner in the mascot design announcement. Accordingly, the court ruled that the implicit consent not to raise an objection even if the design was changed was interpreted as being made by the contestants of the winning work, and otherwise, the right to maintain identity was not infringed.

As a foreign case, there is a photograph of a ski downhill by a mountain photographer. In the case of synthesizing a mountain photographer's ski downhill photo with a car snow tire photo without consent, the court regarded it as an infringement of the copyright holder's right to maintain identity.

In the parody of Seo Taiji's song, it was judged that it was copyright infringement to change the lyrics and the song at will, and rejected the parody claim. In the case of such a mediating parody, it was said that protection could be limited only if it had value as an independent creation.

Recently, under the influence of postmodernism, the use of works such as other works has become common.

And unlike modernism, which emphasizes creative expression, in the case of postmodernism, original ideas are more emphasized, so it tends to be cautious in determining whether or not a parody is infringing on copyright. This is because it is necessary to apply the copyright law more flexibly to the flow of the times. Otherwise, it may become an obstacle to the historic main stream. Therefore, more flexible application of the copyright law is needed based on the proper balance theory, and in particular, more flexible and expanded application of the fair use principle will be needed.