Parody: Perspectives from the U.S and Japan

January 27, 2024

JP1847

By Ayaka Isaji^[1]

Introduction: What are parodies?

What kind of artworks do you think of when you hear the word “parody”?^[2][3] The Great Wave by Katsushika Hokusai or Mona Lisa by Leonardo da Vinci^[4] are some of the most parodied masterpieces. While there is no strict definition of parody, it is generally thought of as the use of copyrighted materials^[5] that appropriate the originals as objects of ridicule, criticism, satire, or medium for other expressions. Usually, parody is also the unauthorized usage of originals unless the original creators grant permission to use their materials. Originals can be various types of media such as songs, novels, movies, sentences, or visual arts, but this article will concentrate on the parody of visual arts. Nowadays, anyone can create parodies easily by using Photoshop or other apps whose tools make it easier to copy, paste, and modify originals. In such situations, how do copyright laws approach parodies? This article introduces ideas from two countries: the United States and Japan.

Parodies in the U.S.

Most parodies are based on copies of original artworks since the nature of parody works is to comment on the original. Referencing a certain amount of work from the original artwork is necessary to create this category of art. Without copying original artworks, people cannot recognize that an art is parody. In cases where original artworks are copyrighted, reproducing or creating derivative works based on a copyrighted original work could be a copyright infringement. However, not all situations of reproducing or creating derivative works from original artworks necessarily constitute a copyright infringement. While there are several primary defenses against the copyright infringement action, the key defense for parody is the fair use doctrine. In U.S. copyright law, the fair use doctrine is codified in Section 107 of the 1976 Act and the statutory fair use limitation protects specific usages from copyright infringement actions to aim the core constitutional goal (“the Progress of Science and useful Arts”^[6]) of copyright protection, such as: criticism, comment, news reporting, teaching (including multiple copies for classroom use) and scholarship or research. Also, it provides a statutory framework with a four-factor test used by courts to analyze whether a work is infringing a specific copyright of an original work case-by-case. Based on the a four-factor test, the fair use analysis is generally governed by these factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Although there are four factors, courts do not consider the weight of each factor equally. One example of a parody fair use case is Leibovitz v. Paramount Picture Corp., 137 F 3d 109, 110 (2d Cir. 1998), which describes when a defendant asserting a fair use defense achieves a purpose and character of parody (factor (1), courts’ conclusion tends to lean toward parody. In Leibovitz, a photographer who owned the copyright for a photograph of pregnant actress Demi Moore sued Paramount Picture Corp. Paramount used a composite photograph depicting actor Leslie Nielsen as the pregnant Moore to advertise a forthcoming movie, which caused a copyright infringement. The court held that the photograph was parody and it constituted fair use of the plaintiff’s photograph; the case considered all four factors of fair use, particularly the photograph’s “significant depreciation of the second factor where parodies commenting on an original are concerned, we are satisfied that the balance here markedly favors the defendant.”^[7] As the Senate and House Reports^[8] give examples of possible fair uses including “use in a parody of some of the content of the work parodied” as the same as criticism or comment, the purpose and character as parody seems to be a key factor to determine the direction of a court’s decision. Therefore, convincing the court that one of the purposes for creating a work is to make fun of, spoof, or criticize the original work is crucial to a defendant; however, still, parody does not have to be a sole purpose or even the primary purpose as long as one purpose for the work was parody^[9].

Parodies in Japan

On the other hand, in Japan, a country with a civil law system, there is no article relating to fair use. In other words, in Japanese copyright law (“Copyright Act”), there are no general provisions which can constitute a defense against copyright infringement actions, and there are only provisions that define specific actions that do not fall into copyright infringements. These provisions provide details of permitted usage cases as exceptions to copyright infringement such as quotation, restricted copies for private purposes or ones in libraries.^[10] Parodies are considered copyright infringement if they do not fit such the definitions of the permitted usages. Therefore, in Japan, the legitimacy of a parody is scrutinized from the point of view of whether the parody is applied as a legitimate copy or quotation of the original works as defined in sections 30 – 47 of the Copyright Act. In Japan, the introduction of fair use was discussed in the past, but it was not codified into an article in the end.^[11] It seems that the absence of fair use makes it challenging for a defense of parody because the definitions of the legitimate copy or quotation are limited and not as flexible.

There is a famous, single lawsuit in Japan in which the Japanese Supreme Court addressed the issue regarding parody and ruled the meaning of quotations according to the Copyright Act and when an author’s moral right is infringed by the quotation.^[12] In this case, a defendant created montage artwork by appropriating a part of a photograph which a plaintiff issued in his photo book and advertising calendar. Tokyo High Court (appeal court) held that (i) the appropriation of the plaintiff’s photograph as a part of the defendant’s montage photograph constitutes a legitimate quotation, and (ii) since the defendant’s purpose of the creation was to criticize the original photograph and satirize the society, the quotation was necessary and objectively justified as socially accepted “montage art.” The appropriation should be permitted, and the plaintiff’s moral right is not violated.^[13]

However, the Supreme Court did not emphasize on the nature of the alleged work and whether it was a parody; rather, it analyzed simply and objectively whether the quotation was legitimate. The Supreme court concluded that the following three requirements are necessary for a legitimate quotation:

(i) an artwork which quoted an original work and the original artwork must be clearly distinguishable^[14]

(ii) the artwork which quoted the original work must be recognized as “main” and the original work must be recognized as “subordinate” in a balance between the two works^[15], and

(iii) the quotation must not be in a manner as to infringe the moral rights of the creator of the original work^[16].

Regarding the element of (iii), the Supreme Court held that when essential features of the original work can be directly sensed from the artwork which quoted the original work, the original author’s moral right is infringed. In the end, the Supreme Court concluded that even though the defendant’s montage photograph was made by removing a part of the original photograph in color, combining it with another photograph, and then changing it into a black-and-white photograph, the “essential features” of the original photograph can be sensed, and the original work is not regarded as “subordinate.” Therefore, the defendant’s usage of the original work is not a legitimate quotation, and he violated the plaintiff’s moral rights. This decision puts parodies in a difficult position legally in Japan. First, appropriate “essential features” of original works are necessary to criticize or comment on it. Also, it is not clear where the criteria for decisions of whether an original work is positioned as “subordinate” is placed. Despite such a harsh ruling for parody and other kinds of appropriation, this precedent case has not been overruled for more than 40 years and continues to serve as the basis for various rulings as of today.

However, parodies are mass-produced on a daily basis as one category of entertainment by artists and even by amateurs. One example is the parody of manga. Manga is a Japanese-style of comics or graphic novels, and they are an important part of Japanese pop culture. Manga attracts a huge number of fans, and many of them create parodies of manga as fan art. These parody manga are sometimes sold at comic markets^[17] as “homemade” comic books. Also, these days, it becomes easy to create parody by not only manually extracting original manga by using Photoshop, but also by using generative AI through automatically extracting essential features from a specific comic and blending them with new dialogues. In order to manage such a situation, some original manga artists show the gesture of welcoming parody. At the same time, they also establish guidelines for the creation of parody artworks to let their fans create parody under certain rules. However, in most cases, copyright holders reluctantly approve parody manga as a form of fan art that can encourage new fans of the original manga. Despite parody having a quiet presence in the industry, discussions on parody’s legal standpoint or legitimacy have been in limbo.

Conclusion

As shown in the above, the legal stand points for parody are different in the U.S. and in Japan, which is caused by the existence or nonexistence of fair use doctrine. Should Japan introduce the idea of fair use like the U.S? To address this question, there are two perspectives. One is the stability of civil law system provisions. Like the Japanese Copyright Act, when laws define legitimate actions, it is relatively easy to imagine and predict whether his/her creation would constitute copyright infringement (and the answer is “the most of parody” in Japan). On the other hand, under the fair use doctrine, parody creators have no idea whether their work will be decided as legitimate fair use and they owe the responsibility to convince the court that their creation should be protected under the fair use doctrine. Such responsibility can be a burden for artists. If Japanese artists have motivations or incentives to take such responsibility, enacting the fair use doctrine will be effective. However, since the risk for artists being sued is much lower than in the U.S, it is understandable that motivations or incentives for Japanese people to introduce the fair use doctrine by taking time and cost to reform the Copyright Act could be low. The second perspective is the cultural importance of parody in this era. While creating parody has become easier, parody can play important roles to reconsider original artworks, criticize traditional perspectives, or discover a new point of view. I hope that legal discussions regarding parody and copyright enrich the culture by reaffirming the excellence of originals and increasing fans of both originals and parody.

About the author

Ayaka Isaji is a Japanese lawyer belonging to Mori Hamada & Matsumoto (Tokyo Office) and graduated from Columbia Law School L.LM program. She has worked for artists, galleries, and museums pursuing to practice art law while providing legal services regarding general corporate law matters for clients.

Additional/Suggested Readings:

Yoshimi M. Pelc, “ACHIEVING THE COPYRIGHT EQUILIBRIUM: HOW FAIR USE LAW CAN PROTECT JAPANESE PARODY AND DOJINSHI”, Southwestern Journal of International Law, Vol. 23, Issue 2 (2017), pp. 397-422

https://www.swlaw.edu/sites/default/files/2017-06/SJIL%20V23%2C%20N2%205-Achieving%20the%20Copyright%20Equilibrium-Pelc.pdf

Mariko A. Foster, “PARODY’S PRECARIOUS PLACE: THE NEED TO LEGALLY RECOGNIZE PARODY AS JAPAN’S CULTURAL PROPERTY”, Seton Hall Journal of Sports and Entertainment Law, Vol. 23, Issue 2 (2013), pp. 313-344

https://scholarship.shu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1045&context=sports_entertainment

Nobuhiro Nakayama, “Chosakuken-ho” (Copyright law), Yuhikaku, Vol.2 (2014), pp. 393-410

Sources:

1. Katsushika Hokusai | Under the Wave off Kanagawa (Kanagawa oki nami ura), also known as The Great Wave, from the series Thirty-six Views of Mount Fuji (Fugaku sanjūrokkei) | Japan | Edo period (1615–1868) | The Metropolitan Museum of Art (metmuseum.org) ↑
2. 10 of the most parodied artworks of all time | Blog | Royal Academy of Arts, ↑
3. http://www.sonnymalhotra.com. ↑
4. https://commons.wikimedia.org/wiki/File:Mona_Lisa,_by_Leonardo_da_Vinci,_from_C2RMF_retouched.jpg ↑
5. 239 at Leonard D. Duboff, Christy A. King, Michael D. Murray, Art Law in a nutshell 5^th edition (2016). ↑
6. US Const. art. I, § 8, cl. 8 ↑
7. Leibovitz v. Paramount Picture Corp., 137 F 3d 109, 110 (2d Cir. 1998) at 117. ↑
8. See footnote 29 of the Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574 (1984). ↑
9. Supra note 5, at 242. ↑
10. Copyright Act（Act No. 48 of 1970）https://www.japaneselawtranslation.go.jp/en/laws/view/4001. ↑
11. Bunka Shingikai Chyosakuken Bunkakai Report (The report by Copyright Subcommittee of the Council for Cultural Affairs), 2011 (Japan) https://www.bunka.go.jp/seisaku/bunkashingikai/chosakuken/pdf/h2301_shingi_hokokusho.pdf ↑
12. Saikō Saibansho (Japanese Supreme Court) March 28, 1980, Showa 51 (o) No. 923, Minshū Volume 34, Issue 3, p. 244, available at https://www.courts.go.jp/app/hanrei_jp/detail2?id=53283 (Japanese courts’ official lawsuit repository system). ↑
13. Tokyo High Court (appeal court) May 19, 1976, Showa 47 (ne) No. 2816, available at BA4D7DCD0AC151CE49256A76002F89A (courts.go.jp) (Japanese courts’ official lawsuit repository system). ↑
14. Page 2 at Saikō Saibansho (Japanese Supreme Court) March 28, 1980, Showa 51 (o) No. 923, Minshū Volume 34, Issue 3, p. 244, available at https://www.courts.go.jp/app/hanrei_jp/detail2?id=53283 (Japanese courts’ official lawsuit repository system). ↑
15. See id. 3. ↑
16. Id. ↑
17. https://www.comiket.co.jp/index_e.html. https://en.wikipedia.org/wiki/Comiket. ↑