Keywords: Parody, Fair Dealing, Copyright Infringement, Transformative Use and Fictional Character Protection
Introduction
“Baburao is not just a character, but the soul of Hera Pheri…no one can hijack or misuse it without our permission,” declared producer Firoz Nadiadwala. This statement comes after a Rs. 25 crore legal notice was served on Netflix and the creators of The Great Indian Kapil Show, claiming that the show’s impersonation of the iconic character “Baburao Ganpatrao Apte” from the Hera Pheri franchise, by comedian Kiku Sharda, caused copyright infringement under section 51 of the Copyright Act, 1957 and trademark infringement under section 29 of the Trademarks Act, 1999. This article confines itself to the copyright question: whether this kind of humorous mimicry qualifies as protected parody or crosses the line into unlawful infringement.
Can Fictional Characters Enjoy Copyright Protection?
Section 13 of the Copyright Act of 1957 states that “literary, dramatic, or artistic work” is the broad category under which copyright protection is obtained. Although the Act does not specifically include “fictional characters” as a type of work, courts both domestically and internationally have acknowledged that fictional characters can be protected through copyrights. For instance, in the cases of V.T. Thomas v. Malayala Manorama, Raja Pocket Books v. Radha Pocket Books, the court recognised the copyrightability of fictional characters. Recently, in the case ofArbaaz Khan Production Private Limited v Northstar Entertainment Private Limited and Ors., the Court said that the unique (i) portrayal as well as the (ii) “writing up” of that character would be capable of protection. Thus, judicial reasoning appears to rest on a common underlying thread that fictional characters are entitled to copyright protection, provided they are iconic and developed with distinctive traits.
In the current case, Baburao’s iconic and distinctive personality traits, mannerisms, and catchphrases, such as “Aila!” and “Baburao ka Style Hai,” have given the character a life of its own in popular culture that goes beyond the original movie. Hence, it arguably meets the judicial threshold of a sufficiently delineated character capable of copyright protection.
The Defence of Fair Dealing and Parody
Section 52(1)(a)(ii) of the Copyright Act, 1957, recognises fair dealing as an exception to infringement, providing for criticism or review of work as fair dealing of copyright. However, the term ‘parody’ is not specifically mentioned or defined in this provision. “Parody” is an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect. In India, the Kerala High Court in the case of Civic Chandran v. Ammini Amma, laid down a three-condition test to determine the legality of parodies, which acts as a precedent even today:
- Purpose of use;
- Quantum or value of copyrighted expression borrowed
- Market effects and likelihood of competition
Furthermore, in the case of M/s. Blackwood & Sons Ltd. v. A.N. Parasuraman, the court held that ‘in order to constitute a fair dealing there must be no intention on the part of the alleged infringer, to compete with the copyright holder of the work and to derive profits from such competition and also, the motive of the alleged infringer in dealing with the work must not be improper.’ Thus, intent is also relevant in determining fair use. In other words, the intent should not be to compete with the copyright holder.
Comparative Analysis: Parody in Foreign Jurisdictions
The Copyright Act, 1957, fails to expressly recognise parody as a fair dealing exception, leaving the doctrine subject to subjective judicial interpretation. To address this gap, this section examines the legal frameworks of the US, France, and the EU, which offer a more developed jurisprudence on the subject.
United States
In the United States, the concept of “fair use” under Section 107 of the Copyright Act, 1976 operates through a four-factor test:
- Purpose and Character of the Use
- Nature of the Copyrighted Work
- Amount of Copyrighted Work Used
- Effect of the Use on the Potential Market for the Work
In Campbell v. Acuff-Rose Music, Inc., decided by the U.S. Supreme Court, which concerned a parody of Roy Orbison’s song “Oh, Pretty Woman,” the central issue was whether the use was “transformative”. The Court emphasised that the inquiry focuses on whether the new work adds “something new, with a further purpose or different character, altering the first with new expression, meaning, or message,” rather than whether it is commercial or non-profit. Furthermore, in terms of quantity, only the amount required to remind the spectator, listener, or reader of the original work should be duplicated.
European Union
In the European context, the parody exception is provided under Article 5(3)(k) of the Infosec Directive, which permits Member States to introduce exceptions or limitations for the use of works for the purposes of caricature, parody or pastiche. In theDeckmyn v. Vandersteen judgment, the Court of Justice of the European Union (“CJEU”) identified two essential characteristics of a parody:
- evoke an existing work, while being noticeably different from it, and
- constitute an expression of humour or mockery
The Court also inferred that when applying the parody exception, a fair balance must be struck between the interests of the copyright holder and the freedom of expression of the user who makes the parody of the protected work. Such balancing exercise is to be applied on a case-by-case basis by the national courts. Such balancing exercise is to be applied on a case-by-case basis by the national courts.
This EU framework is reflected in the French copyright regime. Article L 122-5 of the French Intellectual Property Code recognises an exception for parody, pastiche and caricature that necessitates a humorous and significantly altered work that was produced with no intention of harming the creator. For instance, in Moulinsart (pg 20), the court considered whether the imitation was sufficiently distinguishable from the original, including whether there was a risk of confusion between the two works. The absence of such confusion, supported by the differences in the characters and plots, weighed in favour of treating the work as a permissible parody/imitation. This can be understood as consistent with Deckmyn’s requirement that a parody must be noticeably different from the work it evokes.
United Kingdom
In the UK, parody is given as a separate fair dealing exception under Section 30A of the Copyright, Designs and Patents Act, 1988. Furthermore, the case of Shazam Productions Ltd. v. Only Fools The Dining Experience provides a point of reference in this situation since it addressed the question of whether parodying a comedy is covered by legitimate exceptions. In this case, a Television Show brought a copyright infringement claim against a theatre show, for using the fictional character “Del Boy” along with its distinctive features such as catchphrases, themes and other elements. While Deckmyn established the core definition of parody, the Shazam court refined this by emphasising that, particularly for parodies of comedies, some element of commentary or critique must be present to fall within the exception. Moreover, the commentary includes not only the mockery of the original but also that of any third party, to enjoy the benefit of the exception. In this case, since the defendant’s show, as opposed to expressing humour or mockery of the original show or anything else, closely reproduces the original work, producing the effect that the audience feels that they have just lived an episode of the original, it failed to satisfy the test of parody.
Critical Analysis
It is pertinent to note that a common underlying thread that lies in all four jurisdictions is that of “transformation”. In India, in the case of Syndicate of the Press of the University of Cambridge on Behalf of the Chancellor, Masters and School and Ors. V. B.D. Bhandari and Ors., the court articulated the principle that a subsequent work may be called transformative; the subsequent work must be different in character; it must not be a mere substitute, in that it is not sufficient that only superficial changes are made, the basic character remaining the same. This determination, according to the Court, is closely knit with the other three factors, and therefore, central to the determination of fair use, i.e., if the work is transformative, then it might not matter that the copying is of whole or substantial portions. Again, if it is transformative, it may not act as a market substitute and consequently, will not affect the market share of the prior work.
The Delhi High Court explicitly protected parody and satire involving celebrities’ names or images, citing Article 19(1)(a) of the Constitution by establishing that if it were held otherwise, an entire genre of expression would be unavailable to the general public.
Applying this framework, in the instant case, Kiku Sharda’s impersonation of Baburao’s character in an episode featuring Akshay Kumar appears to function as an attempt to evoke nostalgia by referencing a well-known fictional character from his film, rather than an act to replicate the original work for commercial exploitation. Crucially, the episode bears no substantive resemblance to the plot, structure, or sequences of the original film. While Kiku Sharda’s impersonation borrowed Baburao’s unique look and demeanour, it omitted the film’s story, structure, or certain sequences. Thus, this arguably reduces the risk of confusion as laid down in the Moulinsart case. Thus, the impersonation can be considered transformative rather than infringing.
Moreover, unlike the Shazam case, where the imitation aimed to create a flawless, immersive ‘episode’ of the original show, the impersonation in the present case does not attempt to reproduce the protected substance of Baburao’s character. Such an episode constituting mimicry does not act as a “market substitute” of the original, as a viewer of a humorous television segment is unlikely to forgo consumption of the original cinematographic work. In fact, a successful parody can strengthen rather than weaken the cultural and commercial value of the original work. Ultimately, the nostalgic appeal of the iconic character of “Baburao” is likely to rekindle interest in the original, without generating a “likelihood of competition” with the original.
Conclusion
In contrast to a number of other jurisdictions, parody is not specifically recognised as a separate exception to infringement under the Copyright Act, 1957, in India. As a result, creators must rely on the more expansive and frequently ambiguous definition of “fair dealing” under Section 52, especially when it comes to criticism or critique. Thus, there is a need to explicitly recognise parody as an exception.
A more thorough approach is taken by comparative jurisprudence. Given its democratic and creative worth, the EU places parody within the parameters of free expression. For this reason, Indian courts ought to support a liberal, speech-protective interpretation that strikes a compromise between the secondary work’s goal and the right to free speech.
To further improve clarity, judicial guidance on transformative usage would be beneficial. The legality of parody, as observed in France, is determined by elements like the lack of a risk of confusion. Similar analytical guidance would preserve artistic freedom while bolstering doctrinal certainty in India.
Authored By: Ms. Priya Sharma
Ms. Priya Sharma is is a fourth-year law student at Rajiv Gandhi National University of Law, Patiala, with a keen interest in Intellectual Property Rights. She enjoys reading and writing about recent developments in IP law and has gained practical experience in drafting legal documents relating to intellectual property.
