Canadian Fair Dealing Expanded to Include Parody

While working on my recent post about Canadian political cartoonist Dan Murphy’s animated parody being removed from his newspaper’s website, allegedly under pressure from the very company targeted by the video, I was somewhat surprised to learn that such works were not necessarily protected under the “fair dealing” provisions of Canada’s copyright laws. In the United States, the more-or-less equivalent “fair use” clearly allows parodies of copyrighted works as long as they are sufficiently transformative. Murphy’s video, which imagines an executive from oil pipeline company Enbridge growing increasingly frustrated as oil continues to stain his bucolic advertising, would certainly meet that criterion. While the background animation resembles Enbridge’s actual commercials, the voiceover and oil blotches distinguish it from the genuine ads, while also making it clear that Murphy is advancing an editorial comment on the company’s greenwashing over recent spills from its pipelines.

Without Canadian fair dealing protections for parody, however, Enbridge or any other company could stifle such public criticism simply by claiming copyright infringement. In fact, that is exactly what happened in a precedent-setting 1997 Canadian Supreme Court case, Michelin v. CAW Canada. Michelin employees who were advocating unionization produced a brochure that depicted the famous “Michelin man” (real name: Bibendum) about to crush a worker underfoot. The Supreme Court agreed with Michelin that this was copyright infringement and found somewhat mystifyingly that parody did not constitute criticism. From that time until very recently, parodies of copyrighted works were vulnerable to infringement claims in Canada.

But as of a few weeks ago, when the legislation known as Bill C-11 was passed by the Canadian Parliament, parody is now protected under the fair dealing provisions. Unfortunately this advance has largely been overlooked in news and blog coverage because the bill also allowed copyright holders (music labels, ebook publishers, and so on) to apply “digital locks” to their content that will trump all other rights the consumer would normally have, such as making backup copies for personal use. Not surprisingly, this part of the new law is highly unpopular with the public. The fact remains, however, that a separate section of the law has greatly expanded the fair dealing rights accorded to artists such as Dan Murphy and anyone else who creates a parody of a copyrighted work. Copyright scholar Michael Geist lauds the expansion on his blog:

The fair dealing reforms, which add parody, satire, and education to the list of fair dealing categories, represent an attempt to strike a balance between those seeking a flexible fair dealing provision and those opposed to new exception categories altogether… The government rightly rejected misleading claims that the changes will permit unlimited, uncompensated copying.

The new law is not yet in force, but will be implemented sometime in the next few months. For an illustration of how the U.S. fair use protection for parody has benefited comics, one need look no further than Winter Bros. v. DC Comics, a case that eventually made its way to the California Supreme Court in 2003. Country singers Johnny and Edgar Winter sued DC over the villainous half-worm, half-human Autumn brothers who appeared in Jonah Hex: Riders of the Worm and Such. Aside from the crucial half-worm aspect, the comic book characters were very similar to the Winter brothers in appearance and dress. Although the brothers actually sued for defamation of character and invasion of privacy rather than copyright infringement, the Supreme Court justices drew on fair use in their opinion, rejecting the Winters’ appeal:

To the extent the drawings of the Autumn brothers resemble plaintiffs at all, they are distorted for purposes of lampoon, parody, or caricature…. The characters and their portrayals do not greatly threaten plaintiffs’ right of publicity. Plaintiffs’ fans who want to purchase pictures of them would find the drawings of the Autumn brothers unsatisfactory as a substitute for conventional depictions. The comic books are similar to the trading cards caricaturing and parodying prominent baseball players that have received First Amendment protection. Like the trading cards, the comic books “‘are no less protected because they provide humorous rather than serious commentary.’”

Stay tuned to CBLDF for further updates on the Canadian fair dealing reforms as they are implemented.

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Maren Williams is a reference librarian who enjoys free speech and rescue dogs.