An interesting ruling came down from the Belgian court the other day regarding a painting an artist had made using a photograph of a politician as inspiration. The original photographer claimed copyright infringement, while the painter argued that it was a parody. He claimed that it was a critique of the growing conservatism in Belgium. One of the arguments by the photographer’s lawyers was that the painting could not be a parody, as it was not humorous. Apparently the court agreed with this argument, and held that the painting was an infringement because it was not funny. You can read the original story here.
In the United States, one of the defenses against copyright infringement is the fair use defense. And one example of fair use is parody. The idea of parody as a fair use defense against a claim of copyright infringement is based on the First Amendment. The argument is that commentary on politics and public figures is a must in order to support a democratic society. One type of commentary is to make a parody. (Think of the plethora of political cartoons that have existed for centuries.) However, unlike Belgian courts, the American courts have stated that whether or not it is actually funny does not determine whether it is a parody. They believe that it is not within the power of one or a handful of judges to determine whether something is funny or not as reasonable people differ greatly on what they find humorous. By leaving such determinations to the discretion of a handful of people would violate the principles of the First Amendment. Belgian courts might want to take a look at their American colleagues to determine whether they really want to leave such determinations of what is funny to a handful of people, thereby stifling speech.