Meanwhile, Mocking SpongeBob expresses mockery, but only places captions above a copyrighted image.Ī fair dealing analysis considers the purpose of the dealing, the character of the dealing, the amount of the dealing, alternatives to the dealing, the nature of the work and the effect of the dealing on the work (CCH at para. While memes typically draw on existing works, many of them may not “exhibit noticeable differences.” The Drake meme arguably does so by taking fractions of a video and placing them in dialogue with other images to express an opinion. The Federal Court ultimately concluded that parody has “two basic elements: the evocation of an existing work while exhibiting noticeable differences and the expression of mockery or humour.” The mockery need not be aimed at original work’s source, and could be directed elsewhere (para. Supreme Court in remarking that “the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works” ( Campbell v. Cooperstock 2017 FC 616, the Federal Court echoed the U.S.
no 2725 the Quebec Court of Appeal observed that “arody normally involves the humorous imitation of the work of another writer, often exaggerated, for purposes of criticism or comment.” In United Airlines, Inc. It appears that there has yet to be an in-depth discussion of “satire” as a fair dealing exception by Canadian courts. Statutory amendments in the 2012 Copyright Modernization Act (CMA) added parody, satire and education as fair dealing exceptions in addition to research, private study, criticism, review and news reporting. Law Society of Upper Canada 2004 SCC 13 at para. Like substantiality, fair dealing helps strike a “balance between the rights of a copyright owner and users’ interests” ( CCH Canadian Ltd. If a court finds that a meme contains a “substantial part” of a work, liability may still be avoided by relying on a fair dealing exception. Given the endless permutations memes can take, there is no hard-and-fast rule for assessing substantiality.
Others draw on a phrase (“I haven’t heard that name in years”), with the image varying each time. While the Drake meme only borrows two stills from a video, distracted boyfriend uses a photo comprising the entirety of the work. 35).īecause of the variety of approaches to meme creation, assessments of substantiality will be fact-based. By allowing non-substantial taking, the Act seeks to balance creators’ rights with the promotion of the public domain.įactors used to assess whether a substantial part has been taken include the quality and quantity of the material copied, any negative impact on the creator and the work, whether the copying was used to save time and effort and whether the copier used the material in a manner similar to that of the rightsholder ( U & R Tax Services Ltd. The Act does not protect “any little piece the taking of which cannot affect the value of work as a whole” (David Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks at 182, cited in Cinar at para.
This test significantly restricts claims of infringement.
According to the Supreme Court, a “substantial part” must represent “a substantial portion of the author’s skill and judgment expressed therein” ( Cinar Corporation v. Consequently, the key question for a court to consider is whether a meme uses a “substantial part” of the original work. Section 3(1) of the Copyright Act gives rightsholders the sole right to reproduce a work or “any substantial part thereof.” Reproducing a “substantial part” of someone else’s work without consent thus constitutes copyright infringement. However, the question remains as to whether borrowing a copyrighted work for a meme is actionable infringement. Such memes are the unique product of the Internet, which has ushered in an unprecedented era of creative sharing and remixing. Half a decade later, it is still making the rounds on Reddit and Twitter. The images to which Drake reacts are modified by Internet users to convey an opinion on a particular set of alternatives. A meme soon emerged using frames from the video, in which Drake is shown reacting to two different images: rejecting image A, and embracing image B. In 2015, Drake released “Hotline Bling” with a slick music video.