Copyright Parody Exception Denied Due to Defendant’s Discriminatory Use

Campbell v. Acuff-Rose Music, Inc. is one of the most interesting cases in history to rely on a fair use defense, arguing that the alleged infringement qualifies as a parody.

Acuff-Rose sued members of hip hop group 2 Live Crew, claiming that their track “Pretty Woman” infringed the label’s copyright in the Roy Orbison song, “Oh, Pretty Woman.” 2 Live Crew had previously sought to license the track from Acuff-Rose to be used as a parody; Acuff-Rose refused and 2 Live Crew used it anyway.

The case went all the way to the Supreme Court where 2 Live Crew prevailed; their parody was ruled fair use, despite being a commercial product. Still, some believed 2 Live Crew’s music shouldn’t have been on sale at all. Three members were previously arrested for alleged obscenity violations but were eventually acquitted after the men received support from freedom of speech activists.

Free Speech Has Limits

A criminal copyright infringement trial that concluded in Finland this week also saw the defendant rely on a fair use-style parody defense. It involved the use of copyrighted content to create an alleged ‘parody’ (one that many people would find offensive), the distribution of that content to the public via Twitter, and a defendant claiming immunity under copyright law. Not that other routes hadn’t already been tested, however.

Former Oulu city councilor Junes Lokka and controversy are rarely far apart. He regularly voices his opinions on ethnic minorities, including what they represent, and what should be done with them. In 2022, Lokka faced Finland’s Supreme Court over videos of a 2016 protest published to his YouTube channel, to which Lokka added subtitles in various languages.

While the words in those videos were not Lokka’s, his claim to be acting as a journalist when he added subtitles was rejected by the court. Upholding the decision of a lower court the Supreme Court concluded that, since the videos contained hate speech and Lokka was responsible for them appearing on his YouTube channel, his conviction for incitement to ethnic hatred must stand.

Subtitle Defense 2.0: The Parody

In the spring of 2020, as the enormity of the coronavirus pandemic was beginning to take hold, Finland’s national public broadcaster Yleisradio Oy (Finnish Broadcasting Company) aired a news broadcast in Somali. Without obtaining permission, Lokka made a copy of the report, added his own subtitles, and then retransmitted the new version to the public via Twitter.

In the opinion of Yleisradio, the subtitles added by Lokka were both racist and degrading. When he copied and then rebroadcast the news report, that was copyright infringement.

Lokka claimed there was no requirement to obtain permission from Yleisradio. New law that came into force in April 2023 allows the free use of copyright works for parody, pastiche, and caricature.

Lokka chose parody but under the circumstances, that underperformed.

Parody Under Copyright Law

Yleisradio was represented by the Copyright Information and Control Center (TTVK) and as the Finnish anti-piracy group revealed this week, the nature of the subtitles added to the news report proved fatal to Lokka’s defense.

“[Th]e court determined that this could not be considered a parody as referenced in Section 23a of the Copyright Act, but a prohibited modification of the work,” TTVK explains.

“The use of the recording in the manner outlined in the case was not justified under copyright exceptions. The court considered that the edited video contained a discriminatory message, and in its reasoning referred to the interpretation guidelines provided by the Court of Justice of the European Union.”

Freedom of Speech vs. Prohibiting Discrimination

Those guidelines reference a legal opinion in C-201/13 – Deckmyn and Vrijheidsfonds VZW v Vandersteen and Others which found that in order for a derivative work to be considered a parody, certain conditions must be met (pdf).

In the Finnish matter, compatibility with the European Convention on Human Rights, which upholds freedom of expression but prohibits discrimination on grounds of race or religion, proved crucial.

“Accordingly, an act containing a discriminatory message cannot be considered a permitted parody,” TTVK reports.

With parody status unavailable, the content posted to Twitter was confirmed as an unauthorized derivative work, distributed by Lokka, in breach of copyright.

“The court found the defendant guilty of a copyright crime and sentenced him to a fine,” TTVK reports.

“The court sentenced him to pay EUR 640 in compensation for the use of the work in accordance with the Copyright Act, and EUR 2,260 in compensation. In addition, the court prohibited the person from continuing or repeating the act.”

Comments posted to Lokka’s X/Twitter account suggest that to the extent any deterrent effect was intended, it may be quite limited.