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One of the subtle but important differences between entertainment
law in Canada and the US is that parody is a defense to the claim
of copyright infringement in the US but not in Canada.
To parody a copyrighted work in Canada one has to get permission
from the rights holder of the work being parodied which can be difficult
because there is no obligation for the rights holder to grant permission
to you to use their work. The Canadian Copyright Act has very limited
exemptions allowing use of copyrighted works without permission
and parody is not one of them. In fact, when the revisions to the
Copyright Act were being debated in Parliament, an exemption for
parody was discussed and specifically rejected. Canadian courts
have taken judicial note of those debates and have affirmed through
their decisions that parody does not constitute a defense to copyright
infringement.
In the US the right to use another’s copyrighted work without
their permission to parody it is protected by the right to free
speech under the First Amendment. However, a parody is much narrower
than a humourous recasting of an existing work. In the US parody
is a new copyrightable work based on a previous copyrighted work
such that the previous work is recognizable but not taking more
of the previous work than is necessary, and that makes a social
commentary aimed (at least in part) at the subject matter of the
previous work, usually humourously, and is not likely to hurt or
devalue the previous work.
It remains a conundrum for Canadian producers that a work they create
in Canada may be clear for use in the US but not in Canada. This
issue becomes most problematic when a Canadian producer is attempting
to obtain E&O insurance. Parody projects that don’t have
permission from the underlying rights holder currently can’t
obtain E&O insurance in Canada.
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