The long-awaited new song from the rock band Radiohead, Burn the Witch, was recently released to critical acclaim. The accompanying music video clearly evokes the visual style of a much-beloved British children’s TV programme from the 1960’s, Trumpton. Some of the characters and sets in the Radiohead video are very similar in appearance to those of Trumpton, and the video also employs a similar cinematographic style and stop-motion animation technique.
Whereas Trumpton told innocuous stories of a quaint English countryside village, the events depicted in Burn the Witch take an altogether more sinister turn, culminating in a human sacrifice in a clear reference to the classic horror film The Wicker Man. The family of the creator of Trumpton have clearly taken umbrage at this, and have announced their intention to sue Radiohead for copyright infringement, claiming that the music video was made without their permission.
At first glance, it is difficult to see how the Trumpton rights-holders could prevail. No original footage from the Trumpton series appears to have been used, and furthermore, the UK’s Copyright, Designs and Patents Act was amended in 2014 to introduce a new exemption (section 30A) to copyright infringement for “caricature, parody and pastiche“.
Looking a little deeper, however, it seems that things may not be that simple. A controversial decision of the English High Court in 2011 found that copyright in a photograph had been infringed by a photograph having a similar visual style, which appeared potentially to broaden the scope of copyright protection to cover more general concepts and ideas rather than the specific expressions of those ideas. It remains to be seen whether this precedent will be followed and to what extent it might apply to moving, rather than static, images.
Moreover, while the Radiohead video appears to be a fairly clear case of parody or pastiche, the “parody exception” under English law in relation to copyright-protected works only applies to the extent that the parody is considered to be “fair dealing”. Thus, even if Radiohead’s video is found to be a parody, it could still be considered an infringement of copyright if it is found to have copied elements of the Trumpton works in a way that extends beyond fair dealing. The law on what constitutes fair dealing under English law is still unsettled and is assessed on a case-by-case basis. If this dispute heads to court, it could set a very interesting precedent for the assessment of fair dealing in relation to parodies of visual works.