13 November 2015Copyright

John Lewis Christmas parody videos raise IP questions

When does the Christmas season begin? Is it after Halloween has ended or when a pop star turns the lights on for the first time in a town centre?

In the last couple of years, for many it has been when the department store John Lewis first broadcasts its Christmas advertisement.

This year, at a reported cost of £7 million ($10.6 million), the department store has released an advert telling the story of the determination of a young girl t o deliver a telescope to a lonely old man stranded on the moon.

As with previous John Lewis adverts, the theme is centred on the beauty of gift giving. In the latest broadcast, the man is able to view the little girl and her family through a telescope sent via balloons and no longer feels alone.

But just as predictable as the annual and generally mixed response from the UK nation is the emergence of parody videos posted online.

Such videos, however, raise legal questions on the use of copyright protected material.

In October 2014, the UK introduced a parody exception into UK law that allows end users to use copyrighted material for satirical purposes.

The Poke, which describes itself as the “biggest humour site in the UK”, has released a parody video on YouTube whereby the lonely old man is replaced by the Darth Vader character from the “Star Wars” franchise.

Instead of rejoicing in the delivery of the present, Darth Vader decides to blow up planet Earth. The video has generated just over 600,000 views since it was published on November 6.

In another YouTube video, a group of students posted a video poking the fun at the £7 million spent on the advert. Called “ Christmas doesn’t cost the moon”, the video replaces the characters with dolls and was completed in just seven hours and cost £700.

The point of the video was to attack the alleged commercialisation of Christmas they claim the John Lewis advert represents.

A football fan site called Standfree also got in the action by posting a parody video featuring a clip from the 1983 Cup Winners' Cup Final match between Aberdeen Football Club and Real Madrid. In that video, the old man peers through the telescope delivered to him to see Aberdeen player John Hewitt score the winning goal in the game.

Joel Smith, partner at law firm Herbert Smith Freehills, told us that one problem with the copyright exceptions is that there is no statutory definition of parody.

“With the growth of social media and the rise of transformative technology, the use of parody is increasingly common. But in many cases, little thought is given to the copyright position when an image or another work is manipulated to create a parody. It is often clear that the work is a parody, only if the viewer has a local knowledge or insight and a cultural reference to understand the joke.

“One of the remaining problems is while everyone thinks they know parody when they see it, there is no statutory definition of parody,” he added.

The Court of Justice of the European Union (CJEU) provided clarity on the question of what is a parody last year, stating in the Deckmyn v Vandersteen case that a parody “ should display an original character of its own” and it should “relate to the original work itself or mention the source of the parodied work”.

For Smith, one of the key takeaways from the CJEU’s Deckmyn ruling is the recognition that a member state’s parody exception must balance the interests of the right owner and the end user.

“Statutory recognition of parody has caught up with the extensive and clever use of technology for transformative use (such as mashups, remixes, cutups and photo-shopping). It will embolden more creativity by artists, though many will still be uncertain where the line is to be drawn, especially if the work is altered in a way that may prejudice the original artist’s reputation,” Smith concluded.

John Lewis declined to comment.

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