PhD student focussing on the parody exception
at the School of Law, University of Nottingham (UK)
Introduction
In September 2014, Mike Dicks created a Twitter account called ‘UKIP Trumpton’. The account bio stated ‘After the recent defection of the Mayor of Trumpton and Mr Troop the town clerk this is the new home of UKIP tweets from Trumptonshire’ and used the official UKIP logo. Dicks later explained that the account was meant to gently mock UKIP, drawing a parallel between the party’s vision and the classic children’s show “Trumpton,” which lacked diversity. UKIP MEP David Coburn labeled the account as “fake” and urged his followers to report it, even threatening legal action for trademark infringement. This post examines the legality of this parody account under copyright and trademark law, as well as Twitter’s parody policies. It also considers the implications for other political party parodies.
Should UKIP Trumpton account be maintained?
- Does the parody exception apply to Mr. Dicks’ use?
This case could be one of the first to test the UK’s recently implemented fair dealing exception for parody under copyright law, along with its interpretation by the Court of Justice of the European Union. UKIP could argue that their logo is protected as artistic work under copyright law and that reproducing it constitutes infringement. Mr. Dicks could then invoke the parody exception, needing to prove both the purpose and fairness of his use.
The Court of Justice of the European Union has determined that parody must express humor and avoid confusion with the original work. In this case, the humor stems from associating the party’s perceived vision with “Trumpton,” a children’s show known for its lack of diversity. While the court provides limited guidance on assessing humor, it is argued that courts should interpret it broadly and consider the parodist’s intent, which appears to be humorous in this case.
Avoiding confusion might be more challenging. While many would recognize the account as parody, the fairness of the use needs examination. Assessing fairness involves factors like the amount of the original work used, commercial motives, impact on the original work’s market, and whether the original work was already published. The extent of the logo’s reproduction could be problematic. However, UK case law suggests that copying an entire work might be acceptable depending on the use’s nature and purpose. Considering the overall context of the Twitter account, the parody exception might apply.
- Could Mr. Coburn succeed in a trademark infringement claim?
Unlike copyright law, trademark law currently lacks a specific parody exception in the UK. Trademarks primarily function to identify goods and services. Trademark law has expanded to cover similar and dissimilar goods or services. Therefore, Mr. Coburn might have grounds to argue that the parody account infringes upon UKIP’s graphic and verbal trademarks.
However, trademark infringement requires use “in the course of trade” and “in relation to goods or services.” Due to this requirement, most parodies fall outside the scope of trademark law. It’s unlikely that Mr. Dicks’ account, used for non-commercial political commentary, qualifies.
If the use were considered “in the course of trade” and “as a trademark,” likelihood of confusion or association would need to be established. While parody inherently aims to avoid confusion about the source, it often relies on association with the original. This raises questions about trademark law’s ability to address parody, as it doesn’t distinguish between commercial and non-commercial uses.
Even without confusion, UKIP could argue that the parody dilutes their trademark. This requires proving that the trademark is well-known and that Mr. Dicks’ use, without due cause, takes unfair advantage of or harms the trademark’s distinctiveness or reputation. While UKIP’s reputation might be easily established, the concept of “due cause” is open to interpretation. However, given the commercial context of trademark law, courts might limit “due cause” to commercial justifications.
Ultimately, if the parody merely leverages the trademark’s distinctiveness for commentary without demonstrably harming UKIP, freedom of expression should outweigh trademark enforcement.
- How does Twitter handle parody accounts?
Twitter’s guidelines for parody accounts mandate distinguishing features: the avatar cannot be the exact logo, the name must be differentiated, and the bio must explicitly state its parody nature. Accounts not meeting these requirements are subject to removal. However, this system grants Twitter significant control over potentially infringing content, which might impact freedom of expression.
Conclusion
As this case demonstrates, parody exists in a legal gray area. While copyright infringement seems unlikely, UKIP might have a stronger case for trademark infringement. Additionally, UKIP could leverage Twitter’s parody policy against the account for not explicitly identifying itself as parody in the bio.