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on private property (or even public property) is not an abuse of free speech. Why should it be different simply
because the property is a trade mark? That is not to suggest that puns and the like are not countenanced or
that trademark owners' oversensitivity should be humoured. However, courts are
Page 164 of [2004] 4 All SA 151 (SCA)
in general not amused by sex and drugrelated "parodies", even if they are clever or funny, simply because
the prejudice to the trade mark tends to outweigh freedom of expression.47 On the same principle, unfair or
unjustified racial slurs on a trademark owner (even if not hate speech or approximating it) should in general
not be countenanced, more so in a society such as ours. The whole point about reputation is that, like sanity,
it operates as a working assumption to question it is, in itself, to devalue it.48
[32] Another factor to be taken into account is the predatory intent of the defendant.49 Tshirts are primarily a
marketable commodity and not only a communication medium. It is not the appellant's case that they were
used in this case otherwise than in the course of trade. It is also not the appellant's case that the mark was
not used in relation to goods. On the contrary, the appellant is in the business of marketing clothing. Using
wellknown marks for the marketing of its goods is the whole basis of the appellant's commercial existence.
[33] Purely derisory "parody" of a mark should also not be entitled to protection.50 In this regard defamation
principles may be of assistance and matters such as truth, public interest and fair comment may play a role in
determining whether the use of a caricature is justified. That is a reason why the nature of the message
conveyed by the Tshirt is important.
Parody
[34] Appellant and FXI submitted that the message was a parody of Sabmark's trade marks and, as such, entitled
to freedom of expression protection. In this regard much reliance was placed on American jurisprudence, more
often than not on copyright cases. It is necessary to place all this in a proper perspective.
[35] The leading case on copyright parody in the USA is the judgment of the Supreme Court in Campbell v Acuff
Rose Music Inc.51 It concerned the question whether a song which parodied Roy Orbison's song, "Oh, Pretty
Woman," may be a fair use within the meaning of the US Copyright Act.52 The "fair use" of a copyright work
for purposes of criticism or comment is in terms of the statute not infringing use. To
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determine whether parody falls within the meaning of "criticism" the court defined "parody" and it did so in
these terms:
"The germ of parody lies in the definition of the Greek parodeia, quoted in Judge Nelson's Court of Appeals
dissent, as "a song sung alongside another." 972 F.2d, at 1440, quoting 7 Encyclopaedia Britannica 768 (15ed.
1975). Modern dictionaries accordingly describe a parody as a "literary or artistic work that imitates the
characteristic style of an author or a work for comic effect or ridicule," or as a "composition in prose or verse in
which the characteristic turns of
Page 165 of [2004] 4 All SA 151 (SCA)
thought and phrase in an author or class of authors are imitated in such a way as to make them appear
ridiculous." For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to
quote from existing material, is the use of some elements of a prior author's composition to create a new one that,
at least in part, comments on that author's works. If, on the contrary, the commentary has no critical bearing on
the substance or style of the original composition, which the alleged infringer merely uses to get attention or to
avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work
diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.
Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or
collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the
very act of borrowing."53
[36] A finding that an allegedly infringing work is a parody does, however, not conclusively establish that its use of
the senior work was fair. In order to determine whether "use" constitutes fair use all relevant factors have to
be taken into account, including those specifically listed in the US statute. One such factor is the purpose and
character of the use. For example, as Campbell makes clear, the use of a copyright work to advertise a
product, even in parody, is treated with less indulgence than the sale of the parody itself. (In Canada, on the
other hand, parody is not regarded as fair use of a copyright work54 and there is no indication that the
position in the UK is any different.) Satire, on the other hand, differs from parody since it does not comment
on the senior work and can, therefore, not be considered to be a comment or criticism of the copyright
work.55 Even then, as a literary critic said
"a satirical intention, however sincerely felt, does not supersede the requirements of ordinary decency."56
Mr Nurse, who should know, ironically enough, described his use as satire and not as parody. Mr Welz, the
editor of Noseweek who filed an affidavit in support of Nurse, was able to give a number of examples of
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