Laughing Is Not an Exception! An Italian Perspective on the Autonomous Protection of Parodies Beyond Elaboration

Abstract

This paper analyses the legal regime of parodistic work from an Italian and European copyright law perspective. Taking into consideration that the Italian Copyright Act does not contain any specific parody exception, the author maintains that parodistic works cannot fall within the scope of the quotation and criticism exception. Based on the fact that, as is well known, EU copyright law does not allow Member States and national courts to apply a general “fair use” doctrine to support the lawfulness of using another’s work for parodistic purposes, it is argued that the use of a previous work to create a new parodistic work falls beyond the scope of copyright protection, and that the creation and commercialisation of a parodistic work cannot be prohibited by the author of the parodied work, since the former does not amount to an elaboration of the latter.