How Far does the Parody Defence Go In Canadian Law?

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INTRODUCTION

Consider the following scenario: a man walks into your downtown Toronto law office this
week, December 2009, and says “I believe I am the next ‘Weird Al’ Yankovic. I have written an
amazingly funny and socially-relevant re-write of a huge pop song, a private investor willing to
fund the full costs of its production, manufacturing and marketing plus a distribution deal
pending its completion with “___” (fill in major label name here.)1 I’ve heard parody is illegal
here, do I need to release it in the US where parody is legal?”2
Legally, parody in Canada sits nebulously in between two opposing viewpoints; on one
side, parody was expressly rejected as a copyright infringement defence under the doctrine of fair
dealing by Justice Teitelbaum in Cie Générale des Établissements Michelin-Michelin & Cie v.
C.A.W. Canada3 (Michelin;) but conversely and potentially, parody can be said to have been
made permissible under the more relaxed legislative interpretation of the fair dealing exemptions
to infringement endorsed by the Supreme Court of Canada in CCH Canada Ltd. V. Law Society
of Upper Canada4 (CCH). The hypothetical client faces disparate outcomes with the release of
his album here, due to competing views on the legitimacy of its art form. Also, as he stated, the
American Supreme Court has explicitly endorsed parody as a vehicle for criticism providing
valid social commentary in Luther R. Campbell AKA Luke Skyywalker, et al, Petitioners v. Acuff-
Rose Music, Inc.,(Campbell)5. This paper will present an application of current Canadian

1
As with copyright law in general, the quality of the artistic works in question will not be the focus of our analysis.
It is simpler for the purpose of this paper that the parodist be the person who owns the physical copyright in the
recording as opposed to a label, and also to assume that the product will have the same reach in its distribution as
Weird Al Yankovic’s music enjoys.
2
The suggested topic for this paper was selected from your list, being “A "Weird Al Yankovic" type performer
parodies a song. How far does the "parody defence" go in Canadian law?” This scenario and the following analysis is
based on that question. However, it must be stated for the record that ‘Weird Al’ always asks permission from the
original artists; not that that is strictly necessary, as American copyright permits parody for the purposes of valid
commentary on the originals, as is evinced by programs like Saturday Night Live (which in turn has been subject to
litigation in and of itself, but for the purposes of relevance and brevity, SNL will not be discussed in this paper.)
3
71 C.P.R. (3d) 348, 124 F.T.R. 192, [1997] 2 F.C. 306, 1996 CarswellNat 2297 at 68
4
2004 SCC 13, [2004] S.C.J. No. 12, 236 D.L.R. (4th) 395, 30 C.P.R. (4th), 129 A.C.W.S. (3d) 177 at 48
5
129 A.C.W.S. (3d) 177, 510 U.S. 569; 114 S. Ct. 1164; 127 L. Ed. 2d 500; 1994 U.S. LEXIS 2052; 62 U.S.L.W.
4169; 29 U.S.P.Q.2D (BNA) 1961; Copy. L. Rep. (CCH) P27,222; 22 Media L. Rep. 1353; 94 Cal. Daily Op.

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jurisprudence to this dilemma, and also provide an analysis of the comparable situation in the
USA.
In the first part of this paper I will define parody and situate it in a context of criticism,
discuss the fundamental elements of its treatment under fair dealing and assess the inherent
policy tension and balances between protecting copyrighted materials and allowing others to
build upon them under the Canadian Charter of Rights and Freedoms (the Charter.)6. The second
part will elaborate on the factors that provide the client with a potential parody defence if
necessary: the nature of copyright infringement, the implications of the landmark rulings of the
CCH case, including the originality standard, substantiality, Canada’s fair dealing exception in
comparison to the similar provisions of fair use as a defence in American copyright legislation
and in light of the above, a parody’s transformative value and the Canadian juridical examples
similar to Campbell. In the third section of this analysis, I shall pursue the line of reasoning that
would inform the client of the potential bar to parody that he faces under the Canadian Copyright
Act,7namely moral rights. Lastly, parody will be briefly examined in the current copyright reform
process. It will become evident that each parody case needs to be discussed in a fact-specific
context in order to determine its outcome, but in concept and as supported by several authorities,
parody as criticism can and should be admissible as a defence against copyright infringement in
Canada.

I.a) Parody As Criticism

Black’s Law Dictionary8 defines parody as “a transformative use of a well-known work for
purposes of satirizing, ridiculing, critiquing, or commenting on the original work, as opposed to
merely alluding to the original to draw attention to the later work.” Invariably, parody will
always have its roots in an underlying work or works. The amount and nature of the dealing will
always differ on the facts. Despite the connotation of appropriation, the parody is a highly
acclaimed and popular art form. Among the most famous literary parodists are Shakespeare,
James Joyce, Hemingway, and Faulkner. Musical parodists have included Mozart, Gilbert and
Sullivan, and of course, ‘Weird Al’ Yankovic, whose parodies of artists as renowned as Madonna
Service 1662; 94 Daily Journal DAR 2958; 7 Fla. L. Weekly Fed. S 800
6
Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.)1982, c. 11 s.2(b),
<http://www.canlii.org/en/ca/const/const1982.html.
7
R.S.C. 1985, c. C-42 (the Copyright Act)
8
8th ed. 2004

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and Michael Jackson earned him the distinction of being the only parodist to achieve a top 10
position on the Billboard pop music charts, for his take on a song by the artist Chamillionaire.9 In
describing the important role parody performs, one authority commented: “Although a parasitic
art and written at times with malice, parody is as fundamental to literature as is laughter to
health…The best parody surpasses mere imitation. It stands on its own feet, containing enough
independent humor to be funny beyond aping of the original.”10
In Michelin, a case which featured the National Automobile, Aerospace, Transportation,
and General Workers Union of Canada's attempt to unionize Michelin's tyre plants in Canada, the
union tried to employ a parody defence for the campaign at issue; they had distributed leaflets
which depicted the marshmallow-bodied 'Michelin man' known as Bibendum with one leg raised
above an unsuspecting worker, seemingly ready to crush that employee, and exhibited similar
posters in their headquarters, much to the chagrin of the Michelin executives. Michelin sued for
infringement, seeking both damages and a permanent injunction enjoining the CAW from using
Michelin's intellectual property in future organizing campaigns. The CAW argued that their
leaflet was a parody of Bibendum amounting to "criticism" for the purpose of the fair dealing
exception from infringement. s27(2)(a.1) of the Copyright Act, which excludes from the scope of
infringing activity "any fair dealing with any work for the purposes of criticism, review or
newspaper summary." The transformative value of the defendant's work, the social benefit of
humorous criticism, the need to conjure up the original work, and the limited market
consequences of the use were all identified as reasons to permit this use. All of these aspects were
present in the Michelin parody, but without embracing the public policy purposes of copyright
beyond the owner's interests, the Court was unable to appreciate their significance.11 These are all
factors in a definition of parody that is supported under the broad, purposive interpretation later
endorsed in CCH.

9
Chamillionaire stated in an interview, "It's really an honor when he does that. [...] Weird Al is not gonna do a
parody of your song if you're not doing it big." In September 2007, Chamillionaire credited "White & Nerdy" for his
recent Grammy win, stating "That parody was the reason I won the Grammy, because it made the record so big it
was undeniable. It was so big overseas that people were telling me they had heard my version of Weird Al's song."
Steve Jones. "Chamillionaire triumphs over cursing on 'Ultimate Victory'". USA Today.
http://www.usatoday.com/life/music/news/2007-09-16-chamillionaire_N.htm
10
Nels Jacobsen, ‘Faith, Hope & Parody: Campbell v. Acuff-Rose, "Oh, Pretty Woman," and Parodist's Rights,’
Fall, 1994, 31 Hous. L. Rev. 955
11
Carys Craig, The Changing Face of Fair Dealing in Canadian Copyright Law: A Proposal for Legislative Reform
at 67 from ‘In the Public Interest: The Future of Canadian Copyright Law,’ Michael Geist (Ed.) Irwin Law, 2005

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 The CAW supported their contention with the precedent of 1994 U.S. Supreme Court
decision in Campbell, which held that a parody amounted to "fair use" under the U.S. statute, and
that this notion of parody as criticism is definitive; the court stated “suffice it to say now that
parody has a less obvious claim to transformative value as Acuff-Rose (the plaintiff) does not
deny. Like less ostensibly humorous forms of criticism, it can provide a social benefit, by
shedding light on an earlier work, and in the process, creating a new one. We thus line up with
the courts that have held that parody, like comment or criticism, may claim fair use under
§107.”12 Each of the two commenting judges in Campbell took the time to define parody for the
purpose of the defences to an infringement action. Justice Souter, who spoke for the court, said
that parody in its purest and simplest form had "nothing but a critical aspect." In the concurring
opinion, Justice Kennedy stated “parody may (be permitted) only if it draws upon the original
composition to make humorous or ironic commentary about the same composition.”
David Vaver, in analysis of the determinative factors of fair dealing, poses that “criticism”
and “review” (two of the five fair dealing exemptions from infringement in Canada) involve
analysing, assessing and using the original; he says that “Parody and satire could qualify under
this head as implicit fair criticisms of their target…As a policy matter, it would therefore be
better that parody and satire not be held infringements in the first place.”13

I.b) Parody, the tenuous balance of author/user rights with the public interest and the Charter

That a parody “borrows” or “takes” from an original work is a given, but it is a legitimate
creative exercise by an author. Moreover, its importance stretches beyond the arts community to
the public at large (as evinced by the breadth of Weird Al’s music and Shakespeare’s plays,)
seeing that the essence of "true" parody is criticism, with successful, educational or wide-
reaching critiques come both the expansion of knowledge and an alternate or sometimes clearer
understanding of an issue. The more esoteric the form of criticism, the more likely it is that an
unexpected perspective will result. Eric Swetsky provides thoughtful comment to this and its
sheds light on a potentially opposing argument:

12
Campbell, Supra, note 5. §107 of the US Copyright Act will be discussed in detail in part 2.
13
David Vaver, Intellectual Property Law – Copyrights, Patents, Trademarks, Irwin Law 2004,
p.103

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 “On the other hand, copyright is also important -- it is a legal bulwark that protects the
output of the creative community. Copyright infringement would deny parodist creators
the fruits of their labour - the ability to profit from their own creation.

The tension between these competing positions seems to find its resolution within the fair dealing
defence.

If a Canadian court adopts the Justice Kennedy definition of parody as being one that at least
targets the original, holding it up to criticism, and if the parodist's use of another's copyright is
restricted to a fair dealing thereof, parody would then become a legally legitimate form of art
without a correspondingly unfair invasion of the copyright rights of other creators.14

The balance between public interest and the rights holder is a familiar litany to those
familiar with copyright issues in Canada. Binnie J.’s definition of the purpose of copyright is
possibly the most cited jurisprudence in the Canadian copyright lexicon:
“The Copyright Act is usually presented as a balance between promoting the public interest in the
encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the
creator (or more accurately, to prevent someone other than the creator from appropriating whatever benefits
may be generated.)…The proper balance among these and other public policy objectives lies not only in
recognizing the creator’s rights but in giving weight to their limited nature. In crassly economic terms, it
would be as inefficient to over-compensate artists and authors for the right of reproduction as it would be
self-defeating to under-compensate them.” 15

Swetsky’s comment above highlights not just the balance of interests between the public and the
user, but also that in musical parodies there is a balance between the original artist as such (the
parod-ee) and the parodying artist (the parodist.) Should the parodist choose to request
permission from the parod-ee, there is technically no infringement, but because of the nature of
the music industry’s framework of the assignment of copyright for economic reasons however,
there can still be a conflict between the record label (who is often the owner of a signed recording
artist’s mechanical copyright) and the original artist who retains authorial copyright and thereby
economic interest in its performances by telecommunication.

One example of this in parody is that though Coolio’s record label indicated to Weird Al
that it would be acceptable to do a re-make of one of his songs, “Gangsta’s Paradise.” Coolio
himself subsequently expressed to the media that he had never consented. “In crassly economic
terms” though, he accepted the royalties ASCAP (and equivalent performance rights
organizations around the world) paid to him every time Weird Al’s “Amish Paradise” plays on
commercial radio, and upon an apologetic overture from Weird Al, ceased to complain about it in

14
Eric Swetsky, 2 Live Crew, parody and 'Oh, Pretty Woman.' The Lawyers Weekly, Vol. 14, No. 11 (July 15,
1994)
15
Théberge v. Galerie d”Art du Petit Champlain, 2002 SCC 34
www.canlii.org/ca/cas/scc/2002/2002scc34.html {2002] 2 S.C.R. 336 [Théberge]. at paras. 30
and 31

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the media. Not a word was heard in this fairly public debate from Stevie Wonder, whose
“Pastime Paradise” was the basis for Coolio’s version.16

The public’s interest in parody is vested in three different areas. First, the idea of
copyright and a public encouragement of the arts exists both to benefit and expand the public’s
consumption and enjoyment of arts and culture as well as economically providing stimulus and
protection for authorial activity. Second, as stated above, the public benefits in terms of
awareness from the commentary and critiques that re-interpretations of original works provide.
Third, inasmuch as consumers have the right to choose their purchases/listening experiences,
there is a very strong argument for, and has been much commentary on, the subject of the
parodist’s freedom of expression in Canada (and similarly in the US, their freedom of speech.)
Section 2(b) of the Charter avows the statutory commitment to “freedom of thought, belief, opinion
and expression, including freedom of the press and other media of communication.”

Binnie J.A. in Théberge cautiously sheds some light on this furtherance of the copyright
balance, but does not truly address the uncomfortable notion of a private, essentially commercial
transaction overriding Canada’s foremost proclamation of collective public rights: “Excessive
control by holders of copyrights and other forms of intellectual property may unduly limit the
ability of the public domain to incorporate and embellish creative innovation in the long-term
interests of society as a whole, or create practical obstacles to proper utilization…”17

Note Binnie JA’s cautious acknowledgement of the tilting of the balance towards the
copyright owner with the use of the uncertain word “may” in this context. This would imply that
putting a threshold on the public’s or the individual user’s rights is less desirable than following
the Charter’s statutory mandate of freedom of expression. For parodists, though, this could be a
tentative step in the right direction, as it directly acknowledges that a) copyright holders’ rights
can be “excessive,” (that is to say that, in theory, those rights are not fundamentally barred from
use,) b) it ratifies the notion of “embellishment,” and c) it serves as a reminder that there is such
thing as “proper” use of copyright material. Lest we forget, in the notion of a copyright balance,
there is the perpetual polarization of interests, and it becomes increasingly difficult to reconcile a
creator’s interest with an individual user’s interest or with the public’s broader interest.

Professor Carys Craig elegantly outlines the fundamental paradox of yet another delicate balance,
that of weighing the Copyright Act against the Charter’s section 2(b) proclamation of freedom of
expression:

Because the copyright system is concerned with maximizing the flow of meaning through cultural
communication, copyright's very coherence is dependent upon its congruence with the principles of free
expression. As such, conceptualizing the copyright system as inherently in conflict with free expression (such
that it simply overrides free speech concerns) undermines copyright's own rationale and threatens its internal
coherence. Of course, the intrinsic paradox of copyright has always been that it restricts participation in
16
From http://en.wikipedia.org/wiki/%22Weird_Al%22_Yankovic#cite_ref-48 sourced to""Ask Al" Q&As for April
27, 2006". Archived from the original on May 20, 2009. http://www.webcitation.org/5gv2Zw4KL.
17
Théberge, Supra, note 11 at paragraph 32.

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 cultural and social dialogue in order to encourage cultural production and dissemination; in other words, it
must limit communication in the name of encouraging communicative activities.113 We are told (and many of
us trust) that in doing so, the system provides very real encouragement for the development and dissemination
of ideas. However, when it limits communication in the name of individual rights, and chills expression rather
than cultivating it, it simply restricts participation in cultural dialogue without providing the concomitant
benefit that could justify this restriction. To conclude that copyright, in effect, trumps free expression is thus
to deprive copyright of its justification and to render incoherent a public interest-based theory of copyright.18

In Michelin at paragraph 79, Teitelbaum J found that freedom of expression is not defence
to the parodic use of copyright materials: “… the defendants’ right to freedom of expression was
not restricted. The Charter does not confer the right to use private property – the plaintiff’s
copyright – in the service of freedom of expression…” He then held at Para. 109 that, if he had
found an infringement, he would have held that the relevant fair dealing provisions of the
Copyright Act were justified under s. 1 of the Charter.
II.a) CCH, Copyright Infringement, Originality and Substantiality

The Copyright Act sets out a fairly broad but short and firm definition of general
copyright infringement: “27. (1) It is an infringement of copyright for any person to do, without the
consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the
right to do.” However, there are specific exceptions to this rule, one of which is fair dealing. The
test for infringement that precedes a fair dealing defence is generally that of originality and
substantiality.19

CCH gives Canadian copyright law its current definition of originality: ‘what is required
to attract copyright protection in the expression of an idea is an exercise of skill and judgement
[that will] necessarily involve intellectual effort… The exercise of skill and judgement required
to produce the work must not be so trivial that it could be characterized as a purely mechanical
exercise.’ 20 This works in conjunction with a presumptive interpretation of Section 3.1 of The
Copyright Act, which defines copyright as ‘the sole right to produce or reproduce the work or any
substantial part thereof in any material form whatever, to perform the work or any substantial
part thereof in public or, if the work in unpublished, to publish the work or any substantial part
thereof.’ (Emphasis added.) Hence it would not constitute infringement to reproduce, perform, or
publish less than a substantial part of the work. In order to determine whether a substantial part of
the work has been copied, one must examine the quality of the part taken in the context of the
whole work and, in particular, whether ‘salient’ or ‘principal’ features or an ‘essential’ part of the

18
Carys Craig, ‘Putting the Community in Communication: Dissolving the Conflict between Freedom of
Expression and Copyright,’(Winter, 2006) 56 Univ. of Toronto L.J. 75
19
Vaver, supra, note 13 at page 82
20
CCH, supra, note 4 at paragraphs 24, 25

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work have been copied.21 Only upon the determination that an original work has been infringed in
substantial part can a fair dealing defence be argued.

II.b) CCH, Fair Dealing and Non-restrictive Interpretation

The five exemptions from infringement – criticism, review, news reporting, private study, or research are
outlined in ss. 29-30 of the Copyright Act. In CCH, Canada’s landmark fair dealing suit, McLachlin C.J.C.
stated, “any act falling within the fair dealing exception will not be an infringement of copyright.” 22 Until
CCH, fair dealing had received a very restrictive approach; which meant that the purposes of the
dealing were narrowly interpreted such that a defendant’s situation had to fit into the statute as
previously discussed above in Michelin.
However, following the CCH decision there is a greater degree of judicial subjectivity
involved for determination of fairness, even when applying the test for fair dealing outlined in the
appellate levels of the courts. As cited in both the Federal Court of Appeal and the Supreme
Court levels of the CCH decision, in Hubbard v. Vosper, the leading case on fair dealing in the
UK, Lord Denning MR recognized that “it is impossible to define what is ‘fair dealing. It must be
a question of degree...It must be a matter of impression...The tribunal of fact must decide.”23
The tribunal of fact in CCH at both the appellate levels took that admonition into account, Linden
JA for the Federal Court of appeal adopted Professor Vaver’s furthering of the balance analogy,
and also Denning’s analysis of what constituted fairness. McLachlin CJC affirmed both of these
factors and then set out the criteria for determining the steps to follow in a fair dealing exception
analysis,
“The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain
the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted
restrictively. As Professor Vaver has explained, “User rights are not just loopholes. Both owner rights and
user rights should therefore be given the fair and balanced reading that befits remedial legislation..In order to
show that a dealing was fair under s. 29 of the Copyright Act, a defendant must prove: (1) that the dealing was
for the purpose of either research or private study (or criticism, news reporting or educational institutions) and
(2) that it was fair.”24

In affirming Linden JA’s analysis of the factors of fairness from Hubbard, McLachlin CJC
specifically makes reference to the fact that they are also drawn from the American fair use

21
For an interesting case about what constitutes a ‘substantial part’ from a qualitative
perspective, see Robertson v. Thomson Corp., [2004] O.J. No. 4029 (C.A.) There is not the
space within the limited word length of this analysis to discuss the presumption of qualitative
substantiality herein.
22
CCH, supra, note 4 at paragraph 48
23
(1971), 1 All E.R. 1023 (Eng. C.A.) at page 1027
24
CCH, supra, note 4 at paragraphs 48, 50

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doctrine. As a result the analytical framework in assessing the fairness of dealing under the
Canadian doctrine bears some resemblance to the American version. The Hubbard/CCH factors
are as follows: a) the purpose of the dealing, b)the character of the dealing, c) the amount of the
dealing, d) alternatives to the dealing, e) the nature the character of the dealing and f) the effects
of the dealing on the work.25

Consider the American version, which lacks only the alternatives to the dealing, and
merges “purpose” and “character” of the work into one category. The 1976 Copyright Act, which
went into effect January 1, 1978, codified the fair use doctrine as follows:

section 107. Limitations on exclusive rights: Fair Use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including
such use by reproduction in copies or phonorecords or by any other means specified by that section, for
purposes such as (emphasis added) criticism, comment, news reporting, teaching (including multiple copies
for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the
use made of a work in any particular case is a fair use the factors to be considered shall include-

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for
nonprofit educational purpos es;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.26

The purposes set out in section 107 on fair use are non-exhaustive based on the above-
emphasized words “such as,” and are thus only illustrative. The fair use terminology enables the
addition of other purposes, consistent with the statutory rationale of the US copyright act in the
promotion of the progress of arts and science, to be included through judicial interpretation, for
example, fair use is flexible and may include such things as parody and pastiche. The purposes
set out in section 29 of the Canadian Copyright Act on fair dealing were considered an exhaustive
list until CCH and must be specifically for research, private study, criticism, review and news
reporting. ‘If the use does not fit within one of the categories, it cannot be fair dealing; however,
in CCH (at paragraph 54,) the SCC stated that "these allowable purposes should not be given a
restrictive interpretation or this could result in the undue restriction of users' rights." This gives
room for courts to interpret the purposes broadly, and one could even go so far as to argue that

25
Ibid, 53
26
17 U.S.C. section 107, effective 1978

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the list in section 27 (now section 29) of purposes is no longer exhaustive.’27 It should also be
noted here that the Canadian Act currently requires an acknowledgement of source, while the
American one makes no mention of it.
The concept of fair dealing is often used interchangeably with the U.S. concept of fair
use. Parodists should be cautious should be taken when talking about fair dealing and fair use, as
the U.S. fair use notion is a slightly broader concept than the Canadian fair dealing provision
being that the U.S. provision allows three more free uses of copyright materials than fair dealing;
in addition to the five mentioned in s.29 of the the Canadian Copyright Act.. the US provision
also allows for the wider-reaching defences for commentary, teaching (including multiple copies)
and scholarship (which is limited to “private study” in Canada.). In practise, both fair use and
fair dealing leave a number of ambiguities. Also, the Supreme Court has expressly stated its
presumption that American copyright law ie Campbell, is not binding precedent as even when
facts are comparable, both the legislation and or the theory behind it differs.28 The other
statutory endorsement that is significantly different between the two copyright systems and
equally significant to a parodist is the notion of a derivative work’s potential transformative
value.
II.c) Transformative “derivative” Works: a value-added proposition that legitimizes parody?

In Campbell, the American Supreme Court held that the first fair use factor, the purpose
and character of the use, focuses on the extent to which the accused work is transformative and
that parody may qualify as a transformative fair use.29 Theoretically, a transformative work is a
subset of a derivative work, which is provided for in Title 17 §101 of the US Copyright Act: "A
derivative work is a work based upon one or more pre-existing works, such as a translation,
musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in which a work may be recast,
transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or
other modifications, which, as a whole, represent an original work of authorship, is a derivative
work." Derivative works can add value to the original both artistically (the purpose and or the
character of the work) and commercially (the effect of the market on the work,) in that artistically
27
‘Comparing Fair Dealing and Fair Use,’ Copyright and New Media Newsletter Volume 10 (2006), Issue 4
28
CCH, supra, note 3 at paragraph 22: “As this Court recognized in Compo, U.S. copyright cases may not be easily
transferable to Canada given the key differences in the copyright concepts in Canadian and American copyright
legislation.”
29
Cambell, supra, note 4 at 1171-2

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they result in the expansion or propagation of the arts and commercially through licensing or
royalties or awareness-building for the original author..
The District Court in Campbell granted summary judgment to the defendants 2-Live Crew
on the basis that it was, and as such was protected under Section 107. The Sixth Circuit reversed
judgement, finding that while the work was parody in the popular sense, the commercial purpose
of 2-Live Crew (i.e., to sell records) prevented this parody from being a fair use. The Supreme
Court reversed. It was the first time in American music history that the high court spoke on the
subject. First, it ruled, parody is a valid form of criticism which can provide social benefit.
Second, in order to qualify as parody, the work must comment on, criticize or poke fun at the
substance or style of the original composition. Third, while the parodist cannot engage in
"verbatim" copying of the original, s/he can use as much of the original work s/he needs,
including the very heart of it (e.g., the chorus to "Pretty Woman"), in order to create the new
work. Fourth, it is the intent of the artist that is most important in deciding whether the work is a
parody. The courts will not undertake to judge the social worth or artistic success of the work.
Finally, the intent to sell records (the Sixth Circuit’s reason for finding the work infringing) is not
a bar to a work being protected as parody. It can be assumed upon listening to the song that 2Live
Crew wished to employ a popular song about a streetwalker to revisit the thematic content in a
modern, urban African-American context and it would come as no surprise to anyone familiar
with early hip hop that the resulting song was funny and somewhat raunchy. Both the publisher
and Orbison’s estate, though they received substantial monies from Orbison being listed as the
main author objected in the year between its release and the lawsuit, objected vehemently to the
derivative work.
The court in Campbell relied extensively on the analysis of Judge Pierre Laval:

In analyzing a fair use defense, it is not sufficient simply to conclude whether or not justification exists. The
question remains how powerful, or persuasive, is the justification, because the court must weigh the strength
of the secondary user's justification against factors favoring the copyright owner.

I believe the answer to the question of justification turns primarily on whether, and to what extent, the
challenged use is transformative. The use must be productive and must employ the quoted matter in a
different manner or for a different purpose from the original. A quotation of copyrighted material that merely
repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely
"supersede the objects" of the original. If, on the other hand, the secondary use adds value to the original--if
the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new
insights and understandings-- this is the very type of activity that the fair use doctrine intends to protect for
the enrichment of society.

Page 12 of 26
 Transformative uses may include criticizing the quoted work, exposing the character of the original author,
proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may
30
include parody, symbolism, aesthetic declarations, and innumerable other uses.

Canada somewhat awkwardly includes derivative works in s.3 of the Copyright Act:
“Every original literary, dramatic, musical and artistic work includes every original production
in the literary, scientific or artistic domain, whatever may be the mode or form of its expression,
such as compilations, books, pamphlets and other writings, lectures, dramatic or dramatico-
musical works, musical works, translations, illustrations, sketches ...." (emphasis added.) There is
little reference elsewhere of any benefit for derivation or transformation; except in interpreting s.
27 (infringement) in such a means as to take from it that if a copyright holder objects to someone
else’s use of one of their rights that they can enjoin it as the legitimate rights holder. In Michelin,
Teitelbaum J. held that the transformative nature of the defendants' use could not justify the
substantiality of the “mis”appropriation of Bibendum’s image. Similarly, hip hop artist Eminem
flat out refused to allow Weird Al to “take” his music, and similarly equates the downloading of
his music with property theft.

Professor Carys Craig referenced the court’s ruling in Michelin in her essay warning
against the Lockean view of copyright as that which results from authorial labour, she called it
“an unerring adherence to the analogy of naïve private property, an appeal to the Lockean concern with the
"fruits of one's labour," and a clear sense of the moral supremacy of the original creator. It is no coincidence
that we also saw a broad approach to finding substantial similarity regardless of the transformative value of
the defendants' use, and a very narrow approach to the fair dealing defence regardless of the social and
political value of that transformative use. When we disengage public interest demands from the copyright
system, we radically weaken the copyright doctrines responsible for delimiting the copyright owner's
rights.”31

As a parodist, the CAW in Michelin sought to inform the employees of the nature of their
relationship of working “under” their oppressive employer. Recall the depiction of the Michelin

30
There is a relatively new market for a type of derivative works called “Fan Fiction,” whereby authors utilize
characters from popular works ,ie.the Harry Potter and Sex In the City. For examples, see
http://transformativeworks.org. This is the center of some lively debate in the US, pursuant to the breadth in their
copyright legislation for derivative works. Under Canadian law, it would likely not be permissible. Interestingly, the
aforementioned site is run by a copyright lawyer from Washington who happens to be an avid reader and writer of
fan fiction.
31
Locke, Labour and Limiting the Author's Right: A Warning against a Lockean Approach to Copyright Law,
(2002), 28 Queen's L.J. 1 - 60

Page 13 of 26
man standing with his foot in the air, waiting to crush the unsuspecting employee. This can be
seen as trying to bring to the forefront an issue that is bound to infuriate the Plaintiff employer,
but may actually have lead to some enlightenment on the part of the workers, many of whom
likely showed up for work for every day without contemplating the nature of their Lilliputian
relationship as expendable “little people.” Surely this can be seen as having transformative
value,32 as it furthered a possible dimension of awareness in the characterization of the overall
picture of subordination hitherto unknown to or ignored by the workers.
To recap the judicial steps of defending a parody case that involves a lesser degree of social
justice, but could still be held to hold transformative value, that would be more similar to
Cambell or the parodist along the lines of Weird Al, we must turn to one of the only similar
precedential situations in Canada. It illustrates clearly the procedure taken by the judges when
parody is the only defence offered by the defendant. Recall that in order to use the fair dealing
exception, a court must first find that the defendant has infringed the plaintiff’s original work in a
substantial degree before considering whether or not the dealing is fair.
In Productions Avanti Ciné Vidéo Inc. v. Favreau33, the Quebec Court of Appeal dealt with
a suit instituted by the owners of the copyrights in a television series entitled "La petite vie" who
claimed that the defendant Favreau had infringed their copyrights by the production of a
pornographic film entitled "La petite vite" (“the quickie.”) Unfortunately for the defendants, the
court saw little transformative value in x-rated movies. They granted an injunction against the
defendants’ work; however, they extensively examined the defence of parody.
One of the first things that the Court of Appeal had to consider was whether or not "La
Petite Vite" constituted a substantial taking of the original work "La Petite Vie". The trial judge
had concluded that it did not. The trial judge thought the characters of "La Petite Vie" did not
present characteristics sufficiently original to be by themselves protected by copyright. It was the
interaction between these characters, the words that they exchanged, the scenes which they
played that gave to these characters some originality. The Court of Appeal considered this
analysis of the trial judge and in order to determine whether a substantial taking of the original
work had taken place, they referred to the judgment of the Supreme Court of Canada in Slumber-

32
Emir Aly Crowne Mohammed, Parody as fair dealing in Canada: a guide for lawyers and judges, Journal of
Intellectual Property Law & Practice.2009; 4: 468-472
33
Productions Avanti Ciné Vidéo Inc. v. Favreau, [1999] R.J.Q. 1939 (C.A.), 1 C.P.R. (4th) 129; Reversing
79 C.P.R. (3d) 385

Page 14 of 26
Magic Adjustable Bed Co. v. Sleep-King Adjustable Bed Co.34 Similarly herein, the defendant
borrowed elements from the original work, the issue was whether he borrowed a substantial part.
The Court of Appeal indicated that it could not agree with the trial judge when he stated that the
characters did not have sufficient original characteristics by themselves to be subject to copyright
protection.
The Court of Appeal found “La Petite Vie” to be an original work. Each part was a creation in
itself and the fruit of the imagination of the author. The Court held that the characters themselves
were a creation and a substantial part of the work and the use of the characters without
authorization is illegal under the Act. The x-rated version had not only used the characters of "La
petite vie" in their customary appearances and names, but it had also appropriated visual aspects
of the first work, including the music, the decor, the opening presentation with the credit titles,
etc… In fact, “La Petite Vite” employed the totality of the first work except the dialogue as such,
but it did keep the characteristics of the language and of the expressions used by the characters.
During press interviews, the defendant Favreau said that he wanted to make his version "as
authentic as possible."(p. 146). This admission paved the way for a finding that the defendant's
work was an unauthorized sequel, effectively bereft of any redeeming transformative value.
Having decided that a substantial taking of the first work had taken place,
the Court of Appeal went on to decide whether the defence of parody was acceptable. The
respondent's only serious defence of his use of the characters, costumes and decor created in "La
petite vie" is a defence of fair use of these elements for purposes of parody under section 29 of
the Act. The Quebec Court of Appeal saw little in "La petite vite" that could possibly be
characterized as critical parody. Clearly, the main purpose of using "La petite vie" was to exploit
the popularity of that television series by appropriating its characters, costumes and decor as a
mise-en-scene for respondent's video film. From the Court of Appeal's point of view, there is an
important line separating a parody of the dramatic work created by another writer or artist and the
appropriation or use that work solely to capitalize on its originality and popularity. It was no
more than commercial opportunism.
The line may sometimes be difficult to find (as in the distinctions in findings between the
levels of American courts in Campbell,) but courts have a duty to make the proper distinctions in
each case having regard to copyright protection as well as freedom of expression. According to

34
(1984), 3 C.P.R. (3d) 81;

Page 15 of 26
the Court of Appeal, the respondent infringed. Far from a parody of an original dramatic work,
"La Petite Vite" constituted a crass attempt to gain instant public recognition. "La Petite Vie" had
supplied the characters, costumes and mise-en-scene. Once those elements were appropriated by
the respondent, he only had to supply the simple pornographic activity for the success of "La
Petite Vite". Whatever the dramatic merits of "La Petite Vite", the Court of Appeal saw no
parody, criticism or originality in it. Simply adding sex as a pastime for characters that have been
taken from another writer's work did not, in the opinion of the Court, constitute parody or fair use
of that material.35
This decision of the Quebec Court of Appeal has given pre-CCH indications as to what
constitutes the taking of a substantial part of a dramatic work, and to what extent the defence of
parody is available in an action for infringement of copyright in a dramatic work. The
conclusions of the Court were that the defence of fair dealing does not lie where the parody is
really an appropriation of a first work solely to capitalise on popularity, and there can be a
substantial taking of a dramatic work even though no part of the dialogue or script has been
taken. Though it rejected the application of the defence of fair dealing on the facts, and
overturned the trial decision, the Quebec Court of Appeal in Productions Avanti nevertheless
created an important precedent in that it recognized that true parody can be an exception to
infringement for two reasons. First, there will be no infringement if the strict fair dealing
requirements of s. 29 are met. Alternatively, "if a creator produces authentic parody which creates a
new work which pastiches or ridicules another work, or which relies upon another work to mock or
criticize a social or political event....there is no copyright infringement. In my view, two criteria are met:
the finality of borrowing from the other work and the originality of the new work ... Parody and burlesque
are literary and dramatic genres. Their purpose is to criticize by ridiculing a work, a situation or persons.
As soon as a work is qualified as such, it takes on its own life"36
III. Bars to the Parody defence
If one wished to oppose a parody defense, and Teitelbaum J’s express denial of parody in the
strict legislative interpretation as represented in Michelin did not suffice to outweigh the negative
commentary that that case engendered,37 (usable because technically the decision itself has never

35
Avanti Productions, supra note 32 at 137
36
Ibid. at 155
37
See for example:
Jane Bailey, 'Deflating the Michelin Man: Protecting Users' Rights in the Canadian Copyright Reform Process' in
Michael Geist, ed., In the Public Interest: The Future of Canadian Copyright Law (Toronto: Irwin Law, 2005) 125 at
147-56,

Page 16 of 26
been overturned) in addition, there is both old and new caselaw that endorse and elaborate on the
narrow reading of the Copyright Act’s fair dealing provisions along with Moral Rights in
s.28.2(1), a part of the Copyright Act that David Vaver says is sceptically received,
a) Caselaw
There are three notable arts-related cases in which the court explicitly rejected parody and/or
appropriation for critical purposes as a fair dealing defence. In the first two, which are pre-CCH,
the Defendants did not rely on a parody defence, instead arguing they had attempted to license
the original music, and in the third, constitutional rights were the main argument. Simply put,
parody can be an unreliable defence in Canada based on the paucity of caselaw. For simplicity’s
sake they are listed here chronologically:
i) Ludlow Music Inc. v. Canint Music Co.38 This involved a 1967 peacenik parody of the
Weavers' Canadian nationalist adaptation of Woody Guthrie's "This Land Is Your Land"
which held to be an infringement. The notion that ‘Canada belongs to you or me’ was
“thoroughly mocked” and the new critical lyrics suggested that the land in fact belongs to
whoever can claim it by military forces.39
ii) ATV Music Publishing of Canada Ltd. v. Rogers Radio Broadcasting Ltd. 40
"Constitution," a song about the events around the repatriation of the Constitution Act 1982,
sung to the music of the Beatles song "Revolution" without the lyrics, was found to infringe
the Beatles’ copyright. Though it provided absolutely no critical commentary on the
original work, Van Camp paid no attention to the political and social purpose of its use and
focused instead on “the irreparable harm that must ensue to the plaintiff when the music of
a song that is so well known is used with other words. That type of loss cannot be
compensated in money. It would be difficult ever again to listen to the original song
without the words of the new song intruding.”41

and
D'Agostino, Dr. Giuseppina (Pina), Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair
Dealing to UK Fair Dealing and US Fair Use (September 13, 2007). CLPE Research Paper No. 28/2007; McGill
Law Review, Vol. 53, No. 2, 2008. Available at SSRN: http://ssrn.com/abstract=1014404
and
Craig, supra, notes 11 and 18
38
(1967), 35 Fox Pat. C. 114 (Ex. Ct.) [1967] 2 Ex. C.R. 109, 62 D.L.R. (2d) 200
39
James Zegers, “Parody and Fair Use in Canada After Campbell vs. Acuff-Rose” from Canadian Intellectual
Property Review, Vol. 11, 1994, Intellectual Property Institute of Canada at page 208
40
(1982), 35 O.R. (2d) 417 (Ont. H.C.)
41
Ibid, at page 6

Page 17 of 26
 iii) Most recently, Canwest Mediaworks Publications Inc. v. Horizon Publications Ltd42 is a
highly debated BC Supreme Court decision from March of this year, involving a pro-
Palestine parody version of the Vancouver Sun, known to have a pro-Israel bias. The
defendants pleaded that the material was a "parody." This defense was struck out with one
sentence at a very early stage by a BC Court Master in this ruling that parody was not
available as a "fair use" [sic] defense under the Copyright Act, based upon the Michelin
decision of 1996. The Master's ruling was appealed to the BC Supreme Court who affirmed
the Master’s decision. As well as having claimed a parody defence as a quasi-back-up, the
defendants’ main legal thrust relied on freedom of expression: “A healthy democracy
requires a full and open debate of contentious issues, and values the contribution political
satire makes to that debate. As Justice Binnie wrote: “the law must accommodate
commentators such as the satirist or the cartoonist who.…exercise a democratic right to
poke fun at those who huff and puff in the public arena.” 43
b) Moral Rights
In teaching recording arts students about copyright, it has always seemed relevant that I point
out to them in this day where remixes and mash-ups are almost as popular as original songs, that
it is not just the bundle of pecuniary rights inherent to music that dictate a songwriter or a
producer’s legal guidelines, but that the author’s moral rights are also involved regardless of who
owns or to whom the pecuniary interest has been assigned, the author’s moral integrity is still
allotted protection.
The usual examples put forth in class were to point to one student and say “you wrote a
beautiful song for your mother,” then subsequently to point to another and say “you used it in a
pornographic film.” Next, another student would be singled out as having written an ode to a
sunset and yet another student accused of putting that song into an advertisement or a political
campaign for neo-nazis. These are all situations where the original creator’s work has been
subverted for a commercial or offensive cause that would or might prove repugnant to the author.
Parody runs the same risk. Even though one may have a parody defence under fair dealing
against copyright infringement, liability still exists for moral right infringement since the fair
dealing exceptions do not apply to moral rights but exist as a separate right for all authors,

42
2009 BCSC 391, [2009] B.C.W.L.D. 6704, [2009] B.C.W.L.D. 6705, 2009 CarswellBC 739
43
http://www.straight.com/article-153833/canwest-huffs-and-puffs-free-speech-burns

Page 18 of 26
regardless of whether or not there is a separate claim of infringing copyright. The section on noral
rights infringement reads as follows:

28.2 (1) The author's right to the integrity of a work is infringed only if the work is, to the
prejudice of the honour or reputation of the author,

1. distorted, mutilated or otherwise modified; or

2. used in association with a product, service, cause or institution.29

Thus a parodist of a copyright cannot technically risk infringing the moral rights associated with
the work. The underlying moral rights may be infringed either through distortion, mutilation, or
modification; or by using the work in association with some cause (as in Canwest) or institution
(like the Union in Michelin).
IV. The Copyright Reform Process and the future of the Parody Defence
In an eight week, coast-to-coast process during the summer of this year, the government
conducted the first public consultation on the Copyright system in the last nine years. Over 8000
people participated at packed to capacity, public open-house forums conducted in cities across
the country. While peer2peer file-sharing and the modernisation of copyright law to reflect
typical commercial use today are big issues, Michael Geist writes
“Groups from across the spectrum support fair dealing reform. Fair dealing emerged as
one of the most discussed issues with near universal agreement that it is in need of
reform. The divide is really over which approach to take. Many groups called for a
flexible approach that builds on current Canadian law by opening door to additional
categories of fair dealing (the "such as" approach). Another recommended adopting
narrow, specific reforms including new exceptions for parody and satire.44
Though specific exceptions for parody would provide both the greatest clarity on the matter and
would constitute one of the biggest victories for the development of socially relevant art in this
country, the “such as” approach is popular for a logical and expansive reason.
The “such as” approach involves rewriting the Act’s fair dealing provisions to say: “Fair
dealing for purposes such as research, private study, criticism, review or news reporting does not
infringe copyright,” and then enumerate the fair dealing factors as they were described in the
CCH case (again as non-exclusive factors). The important inclusion of the words “such as” would
reflect the view that the categories are no longer rigid, limited and exclusive, but are better

44
Copyright Consultation Provides Blueprint for Reform, http://www.michaelgeist.ca/content/view/4543/159/
having originally appeared in the Hill Times, November 2, 2009 as

Page 19 of 26
understood as broad and open-ended, leaving the substantive inquiry to be based on the facts of
each case as viewed through the six enumerated factors. This would allow for judicial flexibility
and provide space for general growth in, and acceptance of, the development of novel artistic and
technological processes.

CONCLUSION

Professor Craig states emphatically that the reform of the Canadian copyright’s fair dealing’s
“goal must be to achieve, through statutory revision, a fair dealing defence that is capable of
principled application, guided by the purposes that underlie the copyright system, and responsive
to the ever-changing nature of cultural creativity and exchange in the (post)modern, digital
environment.”45
This perspective is rational and forward-thinking; it addresses the needs of the broad
spectrum of rights holders, from the public to the user to the owner to the author. In turn, I would
suggest that in terms of the parody defence, rather than utilizing a spectrum or a balance, these
needs would be best-served if they could be viewed as a holistic continuum rather than a
polarization. What is worth copying is definitely worth protecting,46but surely the idea of the
expansion of artistic practice should be acclaimed by copyright as well as having its expression
protected by it.
The hypothetical Canadian ‘Weird Al’ should be prepared to pursue a post-CCH parody
defence with a firm, positive and factual elaboration of how he satisfies each of the six factors
listen page 9 (if he actually does fall prey to an infringement suit,) but equally he should be aware
that there is a better hope now for legislative reform of fair dealing and transformative works then
ever before in the Canadian copyright narrative. Public policy on parody is slowly becoming as
acceptable in the common law (with France, Australia and several other countires already having
made provisions for its inclusion in their legislation,) In fact, it is submitted herein that the
parody defence is and will be better equipped, post-CCH and copyright-consultation process and
in light of the Charter, to expand the cultural copyright lexicon to include all who seek to enjoy it
in whichever capacity they choose. The ‘Weird Al’ client can and should be able to write, sing,

45
Craig, supra, Note 11 at page 461
46
University of London Press v. University Tutorial Press Ltd., [1916] 2 Ch. 601, 86 L.J. Ch. 107, 115 L.T. 301, 32
T.L.R. 698 at 610

Page 20 of 26
perform and even sell his parody song, without having to defend against allegations of
infringement and unfair dealing.

METAPAPER

INTRODUCTION

Having never written a metapaper before, this is all an exercise in refining my

organizational methods, because having read over this document after its creation, I
have realized quite a lot can be improved in my research methodology, both in the
process of finding authorities and in the heavily time-consuming process of distilling
and synthesizing information for contemplation, organization and use. Oh yes, that
was the point! Thank you, Professor Davis!

Having decided that I wished to become better-versed in copyright as a whole before tackling an
important component of the Copyright Act, I went out and bought three books on the essentials of
copyright.

First, and partially because I was going to take the Sookman/Mason Intellectual Property course,
I went out and bought their 2010 edition of of Copyright Cases and Commentary. I wasted a good
week of solid reading, trying to situate today’s copyright doctrine in the broader context of
historical and international jurisprudence. I realized that caselaw from the UK and the 19th
Century was not particularly relevant to a parody defence in Canada today. In fact, I didn’t even
touch on law outside this continent or from the 19th century, there was no time or space.

However, it gave me a fundamental grounding on some of the fundamentals of copyright, some

of which I employed in the paper, namely a) Originality – the “sweat of the brow” method to
determine it that is still used in the US (and I realized later that it is also what Professor Carys
Craig calls the Lockean method,”) the creative approach, and the post CCH “skill and
judgement” approach, b) the Learned Hand abstraction/filtration method to determine the
“essence of a work” c) the Merger doctrine where Ideas can’t be separated from their Expression

Page 21 of 26
d)substantial similarity and e) more about the other exceptions to infringement than I really ever
wanted to know.

I also bought David Vaver’s Irwin Essential Series text on IP.47 It was almost too much of a
nutshell version and though I quoted it twice, many of his proclamations within the text were too
general to be of much use, and would have required so much further meta-citing so as to be
nearly unusable. However, when I was running out of room, I considered many of his case-
summaries before gleaning relevant quotes to make sure I’d found the epitome of the ratios
correctly.

Lastly, I bought Michael Geist’s excellent anthology “In the Public Interest: The Future of
Canadian Copyright Law” and read it cover to cover. Though I only cited two articles from it,
and one of them, the Craig piece, extensively, I found Teresa Scassa’s article ‘Interests in the
Balance’ on policy and Jane Bailey’s ‘Deflating the Michelin Man’ extremely engaging and
useful from the policy perspective, but I realized that my paper’s focus was on such a narrow
portion of copyright that they would have made it far too long and pulled attention away from the
idea of parody. I also noted the preponderance of citations to John Perry Barlow’s seminal but
extreme article from Wired magazine “The Economy of Ideas” and similarly, Richard Posner and
William Landes “Economic Analysis of Copyright Law.” Other than the factor of fair dealing
that analyzes the effect on the market for the original work, there was little space for money in
this paper, as a parody defence is usually centred on concept rather than the historical
repercussions and the payment of damages.

Having attempted to create a context for fair dealing for my analysis of the limits of a parody
defence, I tackled the caselaw. I used QL, Westlaw, and Canada Law Book (which I now use
extensively, especially for citation assistance) to pull cases that contained the terms “parody” and
“fair dealing.” Then, upon calling up most of the ones that became part of the paper, I went
through those cases for references both positive and negative for jurisprudence and commentary.
There was a case called Joy Music Ltd. V. Sunday Pictorial Newspapers48 that had a great test for
parody in it, that I wrote into the paper in detail and then realized was overturned in Productions
47
See Vaver,supra at note 13
48
[1960] All E.R. 703

Page 22 of 26
Avanti. Similarly, I found an in-depth article called “From Revolution to Constitution: Copyright,
Compulsory Licenses and the Parodied Song,49”which was hugely interesting but also engendered
criticism in Productions Avanti, and was in truth making the predictions that later became truths
in CCH...

I almost didn’t use Productions Avanti because at first I could only find it in French, and while I
struggled though reading it and realized its importance even in translation, it wasn’t until I
spotted a random parallel citation for it from yet another journal article that I didn’t use, David
Fewer’s ‘Constitutionalizing Copyright’(which is one of the main bases for Carys Craig’s article
on reconciling the Copyright Act with Charter values that I did actually use,50) not only because I
prefer her writing style, but also because the Fewer article came out just after the Michelin case,
so while it referred to it but was not privy to see much of Michelin’s ensuing backlash.

I found some cases on trademarks to be useful on the concept of “spoofing,” namely Rotisseries
St Hubert v. Syndicat des Travailleurs de la Rotisserie St Hubert de Drummondville51 and
Schweppes Ltd. v. Wellingtons Ltd.52 In addition, I encountered a trademark/copyright case that I
found to be one of the most difficult to ascertain the actual judgement I have yet read, Euro-
Excellence Inc. vs. Kraft Canada Inc, Kraft Food Schweiz AG and Kraft Foods Belgium.53
Perhaps if I had understood it better, I would have used it. As the subject-matter was related to,
but technically outside of parody as a copyright issue, this was the first section to get chopped. I
also read the background fair dealing and Public Interest/parody caselaw cited in much of the
commentary that did not get cited either because of spatial constraint or lack of direct relevance
to the modern context, Hubbard v. Vosper,54Zamacois v. Douville,55and all three levels of the
CCH case.56

49
(1984), 18 U.B.C. L.J. 35
50
Craig, supra, note 18
51
(1986) 17 C.P.R. (3d) 461
52
[1984] F.S.R. 210 (Ch)
53
2007 SCC 37
54
[1972] 2 Q.B. 84
55
(1943), 2 C.P.R. 270
56
OGD: (1999) 2 C.P.R. (4th) 129 – FCA (2002), 18 C.P.R. (4th) 161, 212 D.L.R. (4th) 385 - SCC
see CCH, supra note 4

Page 23 of 26
I then spent a large amount of time online reading the commentary on blogs by people like
Michael Geist and Howard Knopf (public interest activist lawyers) There are also numerous
websites set up in response to the copyright reform process, ie Excess Copyright, Access
Copyright and Speak Out on Copyright. These were good for providing background but were
often too broad or pared-down in terms of legislation and authority to be usable. Ditto other
copyright collectives, like SOCAN, the CMRRA and SODRAC. For the flip side, I went on the
government website about the copyright reform process and read some of the 8000+ submissions
by the public, the Canadian Intellectual Property Office

Professor D’Agostino’s article Healing Fair Dealing is a very in-depth comparative history and
discussion of fair dealing and use, but proved less useful to me as a citing tool than the broader
brush strokes painted by Professor Craig. Perhaps because her main focus was the CCH case, in
which I felt McLachlin CJC made a very clear and easy to follow judgement, both in terms of the
law and the policy, I did not use the article as much as I had expected to.

I visited the U. of T. Law Library to pull the Mohammed piece on Parody as Fair Dealing as I
couldn’t find it online. The most similar article that I could find online was of an equivalent type
and very interesting, but was written pre-CCH, so it was generally unusable in a modern context:
M. Spence’s Intellectual Property and the Problem of Parody.

The landmark parody case that made me decide to do this paper was the US Supreme Court
Campbell decision that set the bar for parody. I picked only the most relevant commentary out of
the 300 or so papers that have been written about it, and only used 2 of them. Why? Because they
all sounded generally the same after looking through about twelve of them (imagine my dismay
when my “abridged” caselaw and commentary download from QL was 795 pages!) This guided
considerably in narrowing both the topic for the paper and the focus of my research. Ironically,
the question as posed in the suggested topics provided a perfectly adequate guide for the
suggested length of the paper.

I spoke to a couple of entertainment lawyers and the CMRRA and SOCAN about parodies, all of
whom urged a post-CCH understanding and interpretation of the fair dealing provisions. One of

Page 24 of 26
the lawyers stated he felt that as soon as the copyright reform process was undertaken, there
would be substantially higher incidences of parody and satire in music.

The order in which I used my authorities went in accordance to my outline. I determined a quasi-
chronological, quasi-jurisdictional and legislative framework and pulled information as such.
The approach that I would have taken, in retrospect, would have been to not read so much before
starting to write. I got bogged down in minutiae and playing detective from works cited in cases
and commentary. My instincts in writing my outline were spot-on from the get-go. It may have
been that because my baby and my partner were both so sick during the last three weeks (as
documented with Student Services,) it was easier to read than to write, but I relied on my brain
and spent a ridiculous amount of time flipping from authority to authority to re-read passages I
had already read and check citations. Instead of picking my topic and running with it, I went
back and forth from using something to not using it, trying to find a way to use something that
there was no room for, and trying to free up space when I changed my mind about the relevance
of a particular issue (ie. the acceptance of parody but inapplicability of the defence to the facts at
hand in Productions Avanti.)

Proofreading was ever so slightly problematic. I rearranged the order of paragraphs in the
sections a couple of times, and in doing so, had to make grammatical changes. Spelling has never
been an issue for me, but typing is not my strong suit, though it has improved in the last year and
a half of law school. I like to use open source software, and my document application has a fairly
poor spellchecker, not that one should rely on such things but… My mother, a former English
teacher and editor, read this paper before I handed it in and she made a few changes which are
hopefully not too glaring at this stage. Also, I emailed it to the entertainment lawyer to whom I
spoke about the incidences of parody he has seen and read about in his practice. He changed
nothing and said it was “good.” Because of this paper’s length and due date, I had a hard time
finding editorial assistance. Hopefully you will not find the spelling and grammar too
problematic!

In conclusion, this experience of writing the paper was very good for my legal acumen should I
continue to pursue a career in Entertainment or Intellectual Property Law. The experience of

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writing the metapaper has forced me to confront my academic weaknesses, and for that I again
thank you. Overall, my understanding of the fair dealing exception has vastly increased and I
hope to be able to put it into use at some point soon, either in my volunteering with Artist Legal
Advice Services or in practice, or with my friends and family who always ask me questions about
the law. Being that I cannot yet give them any advice, it will be useful to be able to hand them
this paper and tell them that I believe parody is admissible as a defence, and here is why. Unless,
of course, the copyright reform process serves to clarify it, which I sincerely hope will be the
case.

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