Is there a distinction between parody and satire? Kevin Preji and Vishnu Sudheendra discuss this question in light of the different positions of the courts in India and the US, keeping the Kunal Kamra-T-series copyright controversy as the case study. Kevin is a third-year law student at NLSIU Bangalore. His passion lies in understanding the intersection of economics and public health with intellectual property rights. Vishno is also a third-year B.A., LL.B (Hons) student at the National Law School of India University, Bangalore with a keen interest in various aspects of IPR and technology law.
Exploring the Parody-Satire Distinction in light of the Kunal Kamra Saga
By Kevin Preji and Vishnu Sudheendra
Parody, by its very nature, places artists in a situation where infringement of copyrighted material is required to convey their ideas. In that regard, fair use doctrines (Fair Use in the US and Fair Dealing in India) aid in providing spaces for artists to engage with parodical content. Nevertheless, identifying and delineating parody from infringement has been a tumultuous task for various jurisdictions, especially India and the USA. In the US, for example, judicial intervention in creating a distinction between parody (where the object of review/criticism is the original copyrighted work) and satire (where the object of review/criticism is not the original work), has caused greater confusion, leading to various inconsistent rulings that we shall explore below. On the other hand, India adopts a simpler balancing test based on various factors, leading to the inclusion of other considerations such as free speech values, etc.
This post is not purely an academic discussion, as differing standards produce completely different outcomes. Take the recent Kunal Kamra’s Nyaya Bharat Saga for example [Read more here and here]. Since Kunal Kamra utilised the creative expression of T-series to comment on or criticise something beyond the original work, it would be considered ‘Satire’ in the US and thus not protected under fair use (see the discussion below). On the other hand, drawing from the framework in Tata Sons Limited v. Greenpeace International which applies a ‘balancing test’ – balancing free speech considerations and IP rights, Kunal Kamra would be able to avail the defence of fair dealing in India.
In this post, we shall explore whether making a distinction between parody and satire in fair use determination is normatively desirable as a standard in India through the lens of the Kunal Kamra Saga. This post compares the standard for parody/satire to qualify as fair use in the US and India, arguing that the standard in the US provides little to no space for free speech values to be considered. The post concludes by cautioning courts to refrain from importing foreign jurisprudence without due consideration to its normative implications.
Parody vs. Satire: The U.S. Approach
In the United States, copyright law distinguishes between parody and satire under the fair use doctrine, codified in Section 107 of the 1976 Copyright Act. The seminal case, Campbell v. Acuff-Rose Music Inc. (1994), established that parody—defined as a work that copies an original to comment on or criticize it—has a stronger claim to fair use than satire, which uses the original to critique something else, like society or politics. Campbell held that 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” was fair use because it mocked the original’s naivety, emphasizing that parody “must copy an original to communicate” and thus has some right to borrow. Satire, on the other hand, was distinguished under broadly two assumptions (which were made explicit inDr. Seuss Enterprises v. Penguin Books (1997)) that:
- The copyright holder would have otherwise licensed his work as the work itself was not the target of the parody.
- The jurisprudence would then otherwise incentivise exploitation of existing creative works to express one’s ideas.
The court’s logic was that satire, unlike parody, does not need to borrow from the original to make its point, making unauthorized use less justifiable. This distinction hinges on the first fair use factor—purpose and character of the use—which prioritizes transformative works that add “new expression, meaning, or message.”
Similarly, the subjective parody-satire distinction can lead to inconsistent outcomes, as seen in Suntrust Bank v. Houghton Mifflin (2001), when the estate of Margaret Mitchell attempted to block the publication of Alice Randall’s The Wind Done Gone, a retelling of Gone with the Wind in the perspective of enslaved African-Americans. On one hand, the District Court classified the same work as a satire or unauthorized sequel intended to comment upon the antebellum South. Nevertheless, on the other hand, the Eleventh Circuit minimised its more general satirical critique of the socio-historical moment. It reversed the same, defining the novel narrowly as a parody and positioning it as a direct criticism of Gone with the Wind’s depiction of slavery. While the Court ignored Campbell’s warning that satire, too, may be eligible for fair use when adequately transformative, it highlights how works may qualify as either ‘parody’ or ‘satire’ depending on the frame of reference.
India’s Fair Dealing Framework: A Broader Canvas?
In contrast, Section 52 of the Copyright Act, 1957, does not explicitly distinguish between (or mention) parody and satire. Fair dealing permits the use of copyrighted works for purposes like criticism, review, or reporting current events, without specific mention of parody. Indian courts have interpreted this flexibly, as seen in Civic Chandran v. Ammini Amma (Ker HC-1996), where the Kerala High Court applied a three-factor test to assess a counter-drama parodying Thoppil Bhasi’s Ningal Enne Communistaki:
- Purpose of use;
- Quantum or value of copyrighted expression borrowed;
- Market effects and likelihood of competition.
In contrast to the original drama, which dealt with the political and social themes of the Communist Party’s rise to power, the counter drama portrayed the forgotten, depressed classes who were abandoned by the Communist Party after its success in coming to political power. One could argue that the parody–satire distinction was never made as the inquiry into the first factor was merely to determine whether the purpose was to misappropriate for the purposes of creating a similar play or for other ‘improper use’ as mentioned in Blackwood and Sons Ltd. v. A.N. Parasuraman [Madras HC-1958] (a negative decision on any of the three factors). Additionally, the court was clear on the fact that the injunction would significantly hinder the spread of ideas, notably containing a flavour of free speech defences.
This broader approach is echoed in cases like Wiley Eastern Ltd. v. Indian Institute of Management [DHC-1995], where the court underscored that fair dealing protects freedom of speech by allowing criticism and review. In Digital Collectibles Pte Ltd. v. Galactus Funware Technology[2023], the Delhi High Court explicitly protected parody and satire involving celebrities’ names or images, citing Article 19(1)(a). Similarly, Jackie Shroff v. The Peppy Store[DHC-2024] and Amitabh Bachchan v. Rajat Nagi [DHC-2022] affirmed that parodies and mimicry are protected under free speech, distinguishing them from infringements of personality rights.
Normatively Assessing the Parody–Satire Distinction
Addressing the assumptions behind the distinction between parody and satire, Professor Wendy Gordon states that copyright holders, while usually preferring to license their works when the income generated is greater than their estimated earnings, often possess various reasons for anti-dissemination. Campbell only recognises one instance, where authors are reluctant to license their works to parody artists for fear of being the target of criticism. Nevertheless, other motives for anti-dissemination may have nothing to do with satire, leading to a ‘market failure’ which can only be remedied by fair use doctrines (which are denied in the case of satire).
Additionally, courts fail to recognise that the factors provided under Section 107 are merely illustrative and that sufficient weight must be provided to the objective and purpose of copyright as well as First Amendment concerns. As noted in the case of Blanch v. Koons, the Second Circuit insisted on a genuine creative rationale for borrowing copyrighted expressions (as opposed to Justice Kennedy’s worry of satirical artists exploiting existing works to get attention or avoid creating original creative expressions). While the court was satisfied with its reasons for such appropriation, its justification could have also been premised on First Amendment values.
Lastly, critics like John Tehranian argue that the distinction reflects a “propertized” view of fair use, prioritizing copyright holders’ rights over broader expressive freedoms. By requiring parody to target the original work, U.S. courts limit satire’s fair use potential, potentially chilling creative expression that relies on copyrighted material to critique societal issues.
In the Indian scenario, the Tata Sons Limited v. Greenpeace International [DHC-2010] case is particularly instructive for Kamra’s situation. Greenpeace’s online game, “Turtle v. TATA,” parodied Tata’s logo to critique its environmental impact. The Delhi High Court, referencing Campbell, acknowledged the U.S. parody-satire distinction, terming parody as “target parody” [where the target of the parody is the original work] and satire as “weapon parody” [where the original work is used to target something beyond the original work]. However, it rejected a rigid application, opting for a balancing test that weighed free speech against property rights. The court noted that “the target of the parody is not decisive in itself” but serves as an entry point to assess the broader context of expression versus infringement. While Tata Sons doesn’t explicitly reject Campbell’s distinction, the same can be inferred from the court’s hesitation to provide an injunction.
Conclusion
By adopting a broader balancing test, Indian Courts have rightly avoided the U.S.’s strict parody-satire divide, placing sufficient emphasis on other factors such as free speech values. Nevertheless, this conclusion is ironic given the stronger protections accorded by the First Amendment compared to the comparatively weaker protections (limited by ‘reasonable restrictions’) accorded by Article 19(1)(a). Given that Campbell’s distinction was not explicitly rejected in Tata Sons, this piece serves as a reminder to refrain from blindly applying tests from foreign jurisdictions without considering their normative implications. In an ironic yet appropriate conclusion for this piece, Kunal Kamra is indeed better protected for his political views in India than in the US.