‘If parody does not prickle it does not work’: Reflections on the Interpretive Challenges of Dark Parody in the Dutch and South African Courts

Abstract

Focusing on the nexus of humour and the right to free speech, this article introduces the concept of ‘dark parody’ to address parodies that reuse existing material with a dark, humorous twist and explores how courts deal with two of the main interpretive challenges presented by a ‘dark parody’: (1) interpreting the distance between the parody and the copyright/trademark protected work it parodies, and (2) its use of dark humour. Using a metahermeneutic approach, the article analyses how the main features of parody, the legal criteria applied to parody in courts of law, and the role of dark humour influence the judicial interpretation process regarding (dark) parody in the context of copyright and trademark law. Based on this analysis, the article proposes the theoretical framework of ‘parodic distance’ to address the interpretive challenges systematically presented by dark parody via six main categories—content, style, context, message, function and affect—from which the distance between a parody and the original can be interpreted. Applying this framework to two case studies [Mercis c.s. v. Punt.nl, Court of Appeal of Amsterdam; Laugh It Off Promotions v. South African Breweries, Constitutional Court of South Africa], the article provides a comparative analysis of how these courts currently deal with interpretive issues surrounding dark humour in copyright and trademark law and shows how the framework of parodic distance can be a potentially useful conceptual tool that provides a shared vocabulary to complement judicial interpretation and legal discourse at the nexus of dark parody and the law.