Satirical Journalism: Moral Rights and Criticism

Aswin S.

Satirical journalism is a form of journalism which incorporates humour. Through its hyperbolic content, imitation of journalistic authority and mimicry of personalities, it is used to criticise and mock usually powerful targets. The foremost examples of such ‘news outlets’ include The Onion in digital media or print form and The Daily Show in audio-visual form. While mostly a western phenomenon it has now made its way to India with outlets like The Savalavada. However, these outlets might be infringing upon the moral rights of authors and performers. Recent cases by creators regarding moral rights are a potential threat to such outlets. This is because they may often use and modify the works or performances and their images etc, for their content. The object of such content is to criticise. However, moral rights are claimed if there is prejudice to the reputation of the creator through the modification. This kind of content, as a form of satire or parody, aims to criticise a person or entity and their ideas. This article seeks to analyse whether such content violates the moral rights of creators under The Copyright Act, 1957 and whether satirical journalism can be a defence to infringement of moral rights under fair dealing.

Moral Rights and Copyright

Moral rights over works or performances are non-economic rights which exist even when copyright has been assigned. Based on Hegel’s conception of property, which considers control over external objects to be the root of self actualization, these moral rights protect the honour and reputation of the author or performer. This existence is on the premise that a work is the reflection of the personality of the creator. It follows that the final say over their work therefore must rest with them.

Hence, it can be said that ‘personality interests’ are what is protected by these moral rights. In Amarnath Sehgal, interpreting Section 57 of the Act, it was held that an author of a work has four rights; firstly the right of paternity, i.e. to be attributed. Secondly, the economic right of dissemination. Thirdly, the right to purity and fourthly, the right to retraction. The first and third moral rights are intrinsically connected. The right to purity or integrity is what ensures that the creator’s reputation is not harmed by treatment of the work. The fourth right is not available in India but is so in France; the birthplace of ‘droit moral’.  

As per Section 57(b) of the Act, the author of a work can restrain or claim damages from a party who mutilates, distorts or modifies such performance that would cause prejudice to their honour or reputation. The same right is provided to performers over their performances under Section 38B of the Act with the exclusion of ‘honour’. Definitions of an ‘author’ and their work and, ‘performer’ are provided in Sections 2(d) and 2(qq) of the Act respectively. Article 5 of WPPT is reflected in Section 38B through the 1996 amendment of the Act. Article 6^bis of the Berne Convention is reflected in Section 57 of the Act.

The term ‘modification’ in Section 57 was, inter alia, discussed in Mannu Bhandari. It was held that the term must be interpreted ejusdem juris with the terms mutilation and distortion. The threshold of mutilation or distortion may be reached if the modification causes a perversion of the original. In Amarnath it was held that the destruction of a work resulting in the reduction of the volume of an author’s body of work is prejudicial to reputation. The non-commercial aspect of moral rights was highlighted in Wiley Eastern Limited as a right only available to the author.

Recently, in Arijit Singh an injunction was granted prohibiting parties from infringing upon the personality and publicity rights of the plaintiff and upon his moral rights under Section 38B. It was pleaded, inter alia, that certain parties had created GIFS using the images, persona and likeness of the plaintiff and had prejudicially affected his reputation by subjecting him to humiliation, embarrassment and ridicule. The omnibus order mandated a take down of these materials and also protected the name, image, photos, likeness etc of the plaintiff. In Sweety Priyanka, the plaintiff obtained an interim injunction where, inter alia, it was argued that her father’s moral rights were being violated due to recordings of his music being shared on Facebook.

A particular type of journalism could get caught in the cross hairs of rising litigiousness related to moral rights. This affected type is satirical journalism.

Satire, Parody, News and Moral Rights

Satirical journalism often pushes the boundaries of moral rights through modification of works of creators such as performances and images. The following section will attempt to give an overview of the concept and how it could potentially affect moral rights.

SCOTUS in Campbell stated that a parody has some justification for borrowing from an original as in order to make its point, it has to mimic the latter. Whereas, satire has to justify such borrowing as it can stand independently. There is a vague difference between the two.

While satire has a denigrating effect, parodies have a comic one. An important distinction can be the targets of parody and satire. The former usually targets the original work and ancillary subjects like its author, the parody’s author itself etc, whereas satire may target a third object such as authorities, politics, traditions, values, etc.

A combination of the two is ‘satiric parody’. Here a parody acts as a vehicle for satire to make its point. An example is the band Aqua’s single ‘Barbie Girl’ which satirically comments on society’s stereotype of blonde women through a parody of the toy doll. This combination sets the stage for satirical journalism for outlets like The Onion and The Savalavada. 

Such outlets are a parody of typical journalistic work. They will have targets that they will ridicule or mock as a form of criticism and they usually build upon actual news and, being satire, there is also an important element of exaggeration. In relation to copyright issues this paper will look at two kinds of such work;

1. Modification of pre-existing work/performance of the author/performer. For e.g. report that a speech or a book of the party modified to state something else than it actually does.
2. Non existent work/performance purporting to be of the author/performer. For e.g. report of a speech or interview that a party never gave.

The first case will borrow from the creator’s work, tilting it to a parody. Prejudice to reputation is necessary for a claim of moral rights. In Amarnath the court remained silent on what standard is to be followed, the court’s satisfaction that there has been prejudice or the creator’s. However, the court finding harm caused without much analysis points to it being the creator’s satisfaction. In Mannu Bhandari it was held that a new distinct work being caused by modification may not be distortion/mutilation. This is in line with the transformative use rule.

The second case can be said to be a work of its own. However the name, image, likeness etc, of an author/performer may be used in relation to a work they purportedly created. Moral rights are in relation to a created work. However, there is no work in the first place which should lead to any claim of violation of moral rights a non-issue. There are three reasons why this could become a potential issue.

Firstly, Arjit Singh sets such a precedent when GIFS of him are restrained from being created or shared and his image, likeness etc, are protected under Section 38B. The same is the case with Sweety Priyanka as this leaves the door open for an individual to even restrain the creation of a satirical article. Secondly, copyright is increasingly being used to stifle criticism in recent times as SLAPP suits. Thirdly, the dearth of cases in moral rights can lead to an interpretation of Amarnath whereby if a corpus of work being reduced is considered prejudicial to reputation then the artificial increase of such work could be prejudicial if felt so by the author. The negative right of attribution or, right against false attribution, was held in Ved Prakash where an author claimed infringement of moral rights where his name was associated with shoddy work. In Raj Rewal it was observed that a creator will be subjected to criticism for a work he has not done when his work is deformed, as after deformation the public sees him as its creator. Such precedents could cause sufficient grounds for bringing a case for violation of moral rights against outlets that publish non existent work/performance purporting to be of the author/performer; a commonly employed format.

Fair Dealing, the Importance of Satirical News, and Free Speech

Fair dealing means that a copyrighted material can be used by a party without the permission of the author. In India, Section 52(a) of the Act deals with fair dealing. Three uses qualify as fair dealing under this section; (i) private/personal use inclusive of research, (ii) criticism or review, and (iii) reporting of current affairs.

It is the contention of the author that satirical news outlets are a form of criticism and fall within the protection of Section 52(a)(ii). The foremost judgement that deals with parodies and copyright in India is the case of Civic Chandran. In Civic Chandran a play was being organised by the respondents as a parody of one by playwright Thoppil Bhasi. The representatives of Bhasi alleged that it was making use of the same dialogues and characters and substantial parts of the original play were copied as such. Holding it to be not an infringement, the court laid down three factors which would determine if a parody fell within fair dealing. Firstly, the amount used in relation to the criticism or comment. Secondly, the purpose for use. Thirdly, the chances of competition with the original work.

In Blackwood and Sons Ltd it was held that there must be no intent to compete with the original and the use must not be improper to claim fair dealing. Satirical journalism in no way competes with original work as its function is to criticise a work or performance veiled with humour. A reader will not approach the satirical news outlet in substitute of an original. The non-commercial nature of such websites is why the paper has not dealt with publicity rights, which are commercial in nature.

It was emphasised in TV Today Network, a case dealing with satire and publicity rights, that powerful authorities are able to be criticised by satire in even harsh terms. By its character it is not possible for it to be defamation or infringement. Its intention is not to harm reputation or to disparage anyone. While whether modification has caused prejudice to the creator’s reputation is on a case to case basis, a case can be made out for satirical content to not be harming reputation. Supporting this contention of satirical news not being prejudicial are the observations in Raj Rewal that ‘reputation’ means the repute made through work. Satire need not be lowering this repute that they have made through their work.

It is not just criticism of the instant work that is protected but criticism of other work. This includes the underlying philosophy or thought of the work. This is precisely what satirical journalism does. Satire is often an ‘exaggerated portrayal – beyond normal bounds’. For this an author’s work or a performer’s performance may be used and modified to expose not just faults within the work but to expose the philosophy underlying it through the medium of ‘news’.

Modification of a work so as to shock and fool the reader for an instant so that they take a step back and understand the ridiculousness and faults of the original work or its underlying ideas makes satirical news an important form of criticism.

In Civic Chandran the court also noted a technique used by the parodists where, in order to criticise the events of the original drama directly, the counter drama re-enacted or reproduced parts from raised and lowered parts of the stage. With regard to technique, an analogy can be drawn to satirical news. By employing the powerful rhetorical technique of mimicking a serious personality or authority, parody can pick them apart from within.

Moral rights in the Act carve out only two exceptions. Under Section 57 an author cannot claim its violation for a work being displayed either not as per their satisfaction or not at all and under Section 38B an author cannot claim its violation for a work being modified for technical reasons or being edited out or shortened to fit within a limit. In India, unlike the US, fair dealing is not explicitly an exception to moral rights. However this does not mean that it cannot be an exception.

It has been held in Wiley Eastern Ltd., that the protection of the freedom of speech and expression is the purpose of Section 52. It is only when this right under Article 19(1) is protected that criticism, private study and research can be safeguarded. A negative prescription of infringement is not what the parliament intended through Section 52. This can also be extended to Section 38B. If fair dealing is not extended to moral rights, a claim could be made against any criticism made in the form of satire of works or performances. The importance of satire in free speech was also pointed out in TV Today Network.

Super Cassettes Industries Ltd. held that the criticism in fair dealing might be strong yet, even unjustified and malicious criticism will not be an infringement. Although the aggrieved can still move for defamation. Drawing from this observation and the others it is not possible for ‘prejudice to reputation’ in moral rights to supersede the fair dealing through criticism in Section 52. Satirical journalism fulfils the important goal of critiquing a work or performance or its underlying philosophy and does not bring to disrepute the creator in relation to their work.

It can be understood that the modifications caused to a creator’s work through satirical journalism cannot be a violation of their moral rights over the work.  Modifications created such that the contents of the work or performance becomes exaggerated, a hallmark of satire, is so that its faults or the faults in its ideals or philosophies are made known to an audience. Such a practice when done in the form of ‘news’ makes the criticism clearer rather than direct criticism. Due to the intent of fair dealing being to protect free speech and creativity, moral rights, albeit being a non-commercial right, should be subservient to the exception of criticism under fair dealing.

Conclusion

The idea of copyright is to empower the creative process and not hinder it if done lawfully and for a lawful purpose. Criticism of works and ideas through humour and creative means is an important aspect of free speech. If it is not seen as an exception then free speech, then any creative criticism of ideas and works will be stifled substantially.

There is a quote that is often attributed to humorist and social commentator Will Rogers, ‘People are taking their comedians seriously and the politicians as a joke’. While an author’s work or a performer’s performance must be respected, in the modern world, criticism veiled with humour is an extremely effective tool to point out absurdities that hide in plain sight. Such a tool should be protected from rising restrictions against criticism in any form, including moral rights.

The author is a fourth – year B.A. LL.B. (Hons.) student at the Tamil Nadu National Law University.