If you have spent some time on social media in the past year, chances are you have come across Khabane Lame, who, although hardly says much, has become the second biggest TikTok creator with a following of over one hundred million users. Khaby Lame became famous for his amusing and sarcastic Tik Tok skits responding to “ingenious” life hacks. After the first bouts of laughter has subsided, one might be left wondering whether he can in fact legally use videos created by others in his skits without their consent[1]. This article considers the form of art under which Khaby’s skits fall and examines its effectiveness as a defence to copyright infringement.
First, let us recall that copyright law affords exclusive rights to authors and artists to protect their work and promote creation. The Copyright Act protects the original works that authors fix in a tangible medium, such as books, plays, and pictorial, graphic, and sculptural works. Because a copyright gives the copyright owner exclusive rights, infringement typically results when someone uses another’s creation without the owner’s permission.
Now what is a parody? A parody refers to a new creative work which uses an existing work for humour or mockery.[2]Some parodies take aim at public figures or their work in order to make a critique, while others use existing work to draw attention to or comment upon a particular social phenomenon or issue. All parodies share referencing and making use of existing works to generate new social commentary. Accordingly, parodists must carefully consider copyright, because most parodies require taking aspects of an original work in order to invoke it in the minds of the audience.
Examples of popular parodies include Meet the Spartans (parody of 300) and Rick and Morty which is crammed with parody episodes including parodies of Titanic, The Purge and John Wick.[3]
Would Khaby Lame’s videos be considered parody? As a parody mimics an original to make its point, it is pretty safe to call Khaby Lame’s skits parodies. However, it always depends on the particular facts at hand.
Given the nature of parodies, the request to parody a work is hardly ever granted, if made at all. Yet, as parodies necessarily require the use of other copyrighted works, a solid legal defence is essential for the unauthorized usage.
Parody as an exception or defence to infringement
Copyright systems traditionally adopt one of two approaches to locating the parody defence: by creating a special exception from copyright infringement, or by treating it as part of a general exception from copyright infringement, such as fair use or fair dealing.[4] In the EU, pursuant to article 5(3)(k) of the Copyright Directive, EU member states may include in their domestic copyright laws an exception to the rights of copyright owners ‘for the purpose of caricature, parody or pastiche’. The parody exception is one item in a long list of permitted exceptions from the rights of reproduction and communication to the public that are set forth in articles 2 and 3 of the EU Copyright Directive.[5]
In the US, the parody defence is part of the general fair use defence. While section 107 of the Copyright Act 1976 (US) lists a number of illustrative categories of use that might be fair, it imposes no limits on the kinds of use to which it applies.[6] As such, the ‘fair use’ factors are considered by the court when applying this provision. The fair use doctrine acts as a complete defense to copyright infringement. Several factors are considered when determining whether a defendant can successfully assert the fair use doctrine. The four main factors include the following: (1) the purpose of the use of the copyrighted work, including whether it is used for commercial or nonprofit reasons, (2) the copyrighted work’s nature, (3) the size of the portion that was taken from the copyrighted work and its relation to the new work, and (4) the effect that the infringed work has on the value of the original.
On the purpose and character of use, this factor recognizes that it is important to consider the context in which a copyright is used. Reproduction that would otherwise be considered infringement is considered fair use when used for “criticism, comment, news reporting, teaching …, scholarship, or research.” Courts have found this factor to be an important consideration when examining the transformative nature of the work. Transformation occurs when someone adds something new to the copyrighted work in a way that alters the original work’s meaning. The less transformative a work is, the more likely a court is to find infringement. Nevertheless, a court does not automatically find fair use when a copyrighted work is used for one of the aforementioned stated purposes.
Under Nigerian law, parody is recognized as an exception to the right conferred in respect of a work (see by section 5 of the Nigerian Copyright Act). It provides that copyright does not include the right to control— (a) the doing of any of the acts mentioned in the said section 5 by way of fair dealing for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgment of the title of the work and its authorship, except where the work is incidentally included in a broadcast. More particularly, in subsection (b) it also excludes from copyright the doing of any of the aforesaid acts by way of parody, pastiche, or caricature.
Transformation and Parody
In 1994, the US Supreme Court held in Campbell v. Acuff-Rose Music that one way to determine whether a work infringes a copyright is to look at the transformation of the work. If a transformative work is one that adds something new or changes the message of the original work, such work may not infringe.[7]
To receive the fair use defense, a work needs to be sufficiently transformed and comment on the original, however subtle that comment may be. In 1991, Annie Leibovitz photographed a nude, pregnant Demi Moore, posing as the subject in Sandro Botticelli’s well-known painting Birth of Venus, for the cover of Vanity Fair magazine.[8]
Parody as an expression of freedom of speech
The defence of parody may trace its roots to the fundamental right to free speech. The right to free speech is a universal right and expressing oneself through parodies can be seen as an exercise of this right. Under Nigerian constitution, the defence of parody may find justification under Section 39(1) which provides as follows:
“Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”
Back to Khaby Lame
Khaby Lame is silent in his videos. Can one consider his facial and hand gestures as commentary or criticism and are they transformative? This writer answers yes to both questions. His additional mockery of overly complicated life hack videos are indeed the geist of his videos.
One must add, however, that an important aspect of this defence is that parodies should not adversely impact the interest of rightholders by serving as market substitutes for the original works on their derivatives.
Conclusion
TikTok, Facebook, Instagram and YouTube are all platforms that allow you to post content in addition to live streaming capability. They have measures in place to tackle most blatant copyright infringement. However, when it comes to content containing a parody of an existing work, existing measures may not prove helpful due to the nuances that follow parodies. The most important thing to remember, however, is that to successfully claim the defence of parody, the resulting work must be truly “transformative”. Among other things, the work must add something new to the original or present it in a different light. Simple, right?
[1] This article only assumes this position
[2] Sabine Jacques, ‘The Parody Exception in Copyright Law’ Oxford University Press 2019, page 1
[3] Check out SNL’s parody of Squid Game: https://www.today.com/popculture/watch-squid-game-parody-snl-you-never-knew-you-needed-t234595 (accessed 3 December 2021)
[4] For example, see Second schedule to the Nigerian Copyright Act which provides in ‘(b)’ that parody is an exception to copyright control.
[5] Graeme W Austin, ‘EU and US Perspectives On Fair Dealing For The Purpose Of Parody Or Satire’ ,UNSW Law Journal, Volume 39(2), page 12. Available: https://core.ac.uk/download/pdf/51343509.pdf (accessed 18 November 2021)
[6] The list does not include parody.
[7] In Campbell, William Dees and Roy Orbison’s song “Oh, Pretty Woman” was satirized by 2 Live Crew, a rap music group that performed the song “Pretty Woman.” You can find this on YouTube.
[8] Also, in 1993, Leslie Nielsen’s smirking face was superimposed on a photograph of a different nude, pregnant woman, who was posing in a similar way. This derivative photograph was used to promote Nielsen’s newest comedy Naked Gun: The Final Insult. In 1998, in Leibovitz v. Paramount Pictures Corp., the Court of Appeals for the Second Circuit held that the movie poster, which added something new to the original, was sufficiently transformed. Additionally, the smirk on Nielsen’s face compared to Moore’s serious demeanor provided commentary on the “pretentiousness” of the original.
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