n SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Parody as a means to advance the objectives of copyright law

Volume 25, Issue 1
  • ISSN : 1015-0099
  • E-ISSN: 1996-2185



Contemporary South African culture is riddled with parodies of every kind. Although a parody culture exists in practice, artists and other creators have a double-barrelled shotgun to face: they have to worry not only about infringing the dignity of the subject of their parody, but also infringing copyright if a creative work protected by copyright is their subject. The controversial painting by Brett Murray illustrates this conundrum, where the subject of the parody was not only President Jacob Zuma, but also the Soviet propagandist poster which originally featured Vladimir Lenin. As we shall show below, South African copyright law allows a work to be used for a number of purposes, including criticism and review (which is closely related to parody, as ridicule is often a form of criticism), but makes no concessions for blatant comedic expression as a defence to a copyright infringement claim. In the absence of a specific fair dealing exception for this purpose, the public is free to parody elements of South African culture, provided they refrain from using a substantial part of a work portraying the particular feature they wish to parody. If a user wanted to level criticism against a copyright work by means of parody, or use the characteristic elements of a work in a transformative and humorous way, he would find himself without protection. In this way the current copyright regime prevents many new works from coming to fruition, as users have to obtain permission from the author for the parody to be created.

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