The structural, functional, and affective features of parody

Following legal scholarship on parody in the context of copyright law (Breemen and Breemen, 2022; Jacques, 2019) and literary scholarship on parody (Genette, 1997; Hutcheon, 2000), I propose to summarise the features of parody into three main categories: structural, functional, and affective (see Figure 1). Based on Genette’s (1997) literary theoretical insights regarding parody, Breemen and Breemen (2022) define the structural features of parody as an ‘imitation, recognition of the original subject or a close relationship between the parody and the original work’ (468). The structural features of a parody, then, are the evocation of both a closeness with and a distance from an original work. Parody both transforms the text and imitates and reproduces a certain amount of an original work. Essential is that a parody acknowledges this reproduction, which is necessary for audiences to recognise it as a parody (Jacques, 2019: 13).

Figure 1

The three main features of parody. Image created by the author using Canva.

The functional features of a parody illustrate how a parody can have a range of functions that are satirical or ironic, such as providing social or political commentary, creating entertainment by provoking laughter, or conveying criticism (Jacques, 2019: 5). Lastly, Breemen and Breemen (2022) show how parodies can display a range of moods, such as amusement, play, irony, satire, humorousness, and seriousness. I propose to call these moods the affective features of parody, as a parody ‘by its own nature, seldom causes feelings of indifference on the part of the targeted public’ (Ramalho, 2009: 71).

Parodies thus hold a structural tension between the imitation and transformation of existing work, can fulfil a variety of different functions, and display (and evoke in the audience) a range of moods. The structural paradox of imitation and transformation inherent to parody is acknowledged in judicial interpretation. For example, in his concurrent vote in the Laugh It Off Promotions case, Judge Sachs states that:

Good parody is both original and parasitic, simultaneously creative and derivative. The relationship between the trademark and the parody is that if the parody does not take enough from the original trademark, the audience will not be able to recognise the trademark and therefore not be able to understand the humour. Conversely, if the parody takes too much it could be considered infringing, based upon the fact that there is too much theft and too little originality, regardless of how funny the parody is (para. 76).

Parody, then, is a balancing act in and of itself—it balances imitation and reproduction with creative transformation. This structural balancing act at the centre of the parody itself seems echoed in the balancing exercise judges engage in when considering if a parody keeps enough distance from the original work to be a lawful expression instead of a copyright or trademark infringement. Indeed,

parody typically is situated in the very middle of the tension that exists between copyright law and freedom of expression …, arguably precisely due to the close relationship that is required between the parodied work and the parody (Breemen and Breemen, 2022: 473).

Parody thus offers a way to examine the tension between freedom of expression and copyright and trademark law.

Parody in copyright and trademark law

In the context of copyright law, Jongsma (2017) identified three common explicit criteria regarding the legal permissibility of parody employed by the national courts of Belgium, France, Germany and The Netherlands, namely (1) humorous intention, (2) absence of intention to either profit from or compete with the original work, and (3) the absence of risking confusion between parody and original work. In addition, he outlined various implicit criteria that play a role in some courts, such as the absence of harmful intention, the importance of originality, the borrowing of original work limited to necessary elements, original work as the target of the parody, and the importance to respect moral rights (654-664). In the context of trademark law, Ramalho (2009) identified three legal criteria courts generally consider in the European legal regime and the national courts of Germany, France and Spain when dealing with the interpretive challenges of (dark) parody: (1) likelihood of confusion, (2) unfair advantage, and (3) potential detriment to the distinctive character or reputation of a trademark—i.e., dilution or tarnishment. As there is an overlap between the legal criteria regarding parody in copyright and trademark law, I propose to summarise these legal criteria via four main categories: humour, confusion, profit or competition, and detriment. These categories reflect both the main aspects courts consider in parody disputes and the cultural and societal values that underly these legal criteria, which influence the judicial interpretive process.

The humour category is related to the legal criteria of humorous intent or effect of the parody; this category considers the use and role of humour in the parody and underlines the status of a parody as a humorous expression of IP-protected material. As it deals with both the purpose of a parody and the mood it evokes from its target audience, this category is one of the ways a parody transforms the original work via a parody’s functional and affective features. The confusion category underlines the importance courts place on the legal criteria of the likelihood of confusion between the parody and the original work; this category resonates with a parody’s structural feature as it considers how much and what elements the parody reproduces from the original work. The profit or competition category considers if the parody profits or intends to profit from or compete with the original work and is also related to the principle of unfair advantage. In trademark law, when dealing with well-known trademarks that have a reputation, the likelihood of confusion criteria is often considered insufficient for deciding on the permissibility of a trademark parody. In these cases, courts can lean on the criteria of unfair advantage. The rationale behind the unfair advantage principle is to protect the trademark right holder against a parody’s use of the trademark in a manner that results in unfair competition with the parodied trademark and can be considered free riding—i.e., ‘the obtaining of more benefits than one’s fair share at the expense of others’ (Ramalho, 2009: 69). This category is closely related to the functional features of parody, as it considers the purpose of the parody, such as communication or competition with the original work.

Lastly, the category of detriment refers to the implicit legal criteria of absence of harmful intent in copyright law and the principle of detriment to the distinctive character (dilution) or reputation of the trademark (tarnishment) in trademark law.³ This category relates mainly to the affective features of parody, as it focuses on the emotional effect the parody has on its targeted audience. The rationale underlying the detriment principles is to protect the commercial investment of the trademark holder against both blurring the uniqueness of the trademark and the creation of a negative mental association with the trademark in the mind of the consumer and public caused by the parody. See Figure 2 for a visual summary of the four main categories of legal criteria.

Figure 2

The four main categories of legal criteria for parody in the context of copyright and trademark law. Image created by the author using Canva.

Dark humour and parody: Introducing the concept of ‘dark parody’

The category of detriment is especially relevant when dealing with parodies that reuse an existing work and transform it with dark humour. Here, I propose to introduce the concept of ‘dark parody’ to address these particular types of parodies. Since dark humour is a main characteristic of dark parody, the definition of dark humour and three basic types of dark humour proposed by Godioli (2024) are useful to better understand and interpret dark parody and its legal protection in the context of copyright and trademark law. Godioli (2024) defines dark humour as a humorous expression in which one of the scripts creating the incongruity necessary for humour can consist of

three fundamental elements: (1) A sinister event, subject or scenario that usually has a taboo status, at least in the sense that it should not be addressed within a humorous context; (2) The victim(s) of said event; (3) The perpetrators (when applicable, as is the case with a crime), enablers or passive bystanders of the sinister event referenced (131).

In essence, scripts are ‘ideas, thoughts or meanings’ (Attardo, 2020: 116) that are activated in the mind of the audience by the text. The opposition of scripts creates a humorous incongruity that triggers ‘a shift from the automatic interpretation of a given sentence or situation, to a more unusual or unpredictable one’ (Godioli, 2024: 128). Based on these three elements, Godioli (2024) distinguishes three fundamental variants of dark humour—taboo-breaking, disparaging and sarcastic dark humour. As taboo-breaking dark humour aims to question the status of a given ‘dark’ event or subject as taboo by making it part of the humorous expression, I argue this type of dark humour relates to the affective feature of dark parody through the pleasure of the cognitive reward an interpreter derives from the playful conflict of emotions generally regarded as opposites (such as mirth and horror) or the psychological and/or emotional relief that an interpreter experiences by using taboo-breaking dark humour as a way to cope with realities that are experienced as unpleasant or traumatic. The functions of this type of dark parody could be interpreted as entertainment, a coping mechanism or criticising of the taboo status of the subject (Godioli, 2024: 134). In contrast, disparaging dark humour targets the victims of the dark event evoked by the humorous expression, thereby reinforcing negative prejudices about its target. Since the victim(s) of a dark scenario is the target of disparaging dark humour, this type of dark humour relates to the affective dimension of a dark parody through the pleasure derived from feelings of superiority towards the target of the parody. Borrowing from Raul Perez’s work on racist humour, I suggest calling this emotional state and affective mechanism ‘amused contempt’—i.e., feelings of pleasure and amusement from feeling superior towards the targeted victims.⁴ If the humorous aspect of a dark parody is interpreted as disparaging dark humour, the functional feature of dark parody can be a reinforcement of negative prejudices that can be harmful to the target of the dark parody. Lastly, as the intention behind sarcastic dark humour is to expose someone’s inhuman behaviour, I argue that the relation between sarcastic dark humour and the affective feature of parody lies in the pleasure or satisfaction derived from holding someone else accountable for their inhumanity and relates to the functional feature of dark parody that exposes inhumane or unethical behaviour of its target. At times, it can be difficult to distinguish between disparaging and sarcastic dark humour, as the latter often reproduces disparaging humorous expressions by other people in a satirical way to criticise this behaviour (Godioli, 2024: 137). Table 1 offers a visual summary of how the three types of dark humour can relate to the functional and affective features of dark parody:

Due to its provocative and shocking nature, dark parody is not only a place where the boundaries between freedom of expression and intellectual property law intersect but also a space where the limits of humorous expression are subject to discussion. In general, humorous expression is legally protected by the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights), which includes humorous expressions that are provocative or shocking.⁵ However, dark humorous expressions seem to encounter the limit of the right to freedom of expression faster than other forms of humorous expression, especially when interpreted as disparaging dark humour. As the analysis of the case studies in section three will illustrate, courts tend to interpret dark parody as an expression of disparaging dark humour, which then can be considered unlawful concerning the legal criteria of harm and detriment to the reputation of a trademark or original work. While disparaging dark humour is generally considered a harmful expression that is subject to legal restriction, I argue that taboo-breaking and sarcastic dark humour embodies an important aspect that the right to freedom of expression aims to protect, namely the opportunity to reflect on and challenge dominant ways of thinking, and to expose unethical behaviour. By creating a conceptual tool and shared vocabulary to distinguish between different types of dark humour and how they relate to the distance between the dark parody and the original work, this article aims to support courts in navigating the questions surrounding the legal protection of these types of humour that, while being provocative and shocking, can also play an important role in democratic societies.

Dark Miffy: reimaging Miffy with taboo-breaking dark humour

In 2009, Miffy, the famous and beloved Dutch children’s figure of a rabbit created by Dick Bruna, was at the heart of a dark parody dispute at the Amsterdam District Court.⁶ The case revolved around the online publication of seven images portraying Miffy in relation to drug use and terrorism, generally considered topics with a taboo status in humorous expression. Bruna and Mercis considered the use of Miffy in these images as an infringement of their copyright and trademark rights.⁷ Punt.nl, the hosting provider of the websites that published the images, invoked the parody exception as a defence. The Netherlands has an explicit exception for parody incorporated in copyright law (Art. 18b) and the legal treatment of parody in the national court of the Netherlands includes the criteria for humorous intention or humorous result, absence of competitive motivation, and absence of risking confusion between parody and the original work (Jongsma, 2017: 656-7). The parody exception in Dutch copyright law adds one specific requirement to determining the lawfulness of a parody, namely that the parody is ‘in accordance with what is regarded as reasonably accepted under rules of social custom’ (Art. 18b). The Netherlands has no explicit exception for parodies in trademark law, and while a trademark parody is allowed to reproduce elements of the trademark, it should be distanced from the trademark. In other words, it ‘should be sufficiently clear that the parody does not originate from the trademark owner’ (2009, para. 4.7; translation my own).⁸

The proceedings focused on the question of whether the images fell under the parody exception, which would justify the publication of the images online. As such, the judicial interpretation of the images centred mainly on interpreting the distance between the parody and the original and determining if this distance was ‘sufficient’. The Amsterdam District Court first established Miffy as an original work protected by copyright law and that the contested images reproduced the copyrighted features of Miffy. The Court allowed five of the seven images based on the Dutch parody exception in copyright law, because of their ‘humorous intent, lack of competitive intent and lack of likelihood of confusion’ (2009, para. 4.3).⁹ For the Court these images held sufficient distance from the original work. However, the Court decided that the images ‘Nijntje staat strak’ [Miffy under influence] and ‘nijn-eleven’ (see Figure 4), did not need to be considered in relation to the Dutch parody-exception in copyright law, and only considered these images in relation to trademark law.¹⁰ In the context of trademark law, the Court considered if the parody circulated in goods and services—i.e., commercial purpose—, if the parody, without due course, took unfair advantage of the trademark, or if it was detrimental to the distinctiveness or reputation of the trademark. In relation to the images ‘Nijntje staat strak’ and ‘nijn-eleven’, the Court determined that there was no commercial purpose and that the images did not take unfair advantage of the trademark. However, the Court stated that the images were almost identical reproductions of the original work and thus did not keep sufficient distance from the trademark and were ‘detrimental to the reputation of the trademarks because Miffy is associated with drug use and terrorism’ (para. 4.9).¹¹

Figure 4

The contested images ‘Nijntje staat strak’ and ‘nijn-eleven’. Images: unknown author, published in the case of Mercis c.s. v. Punt.nl, 2009: para. 2.3.

In 2011, however, the Amsterdam Court of Appeal overturned this decision and stated that both ‘Nijntje staat strak’ and ‘nijn-eleven’ can evidently be identified as a parody via

the greatly enlarged eyes and the added image on the shirt in [Nijntje staat strak] and the added apartment building in [nijn-eleven], … combined with the accompanying texts … while maintaining the recognizability of the original necessary for a parody, sufficient distance from the original has been taken so that the parody cannot be considered a blind copy (2011, para. 4.13).¹²

In their approach to the interpretive challenges of the dark parodies ‘Nijntje staat strak’ and ‘nijn-eleven’, the Amsterdam District Court and the Amsterdam Court of Appeals focused mainly on the similarities and differences in content and style between the parodies and the original work in relation to the parody-exception in Dutch copyright law. In the context of trademark law, however, the Amsterdam District Court also considered the function of the parodies—i.e., do they have a commercial purpose, or does it take unfair advantage of the trademark—and the affect presented by the parody—i.e., are the parodies detrimental to the trademark’s reputation without due cause. The Amsterdam District Court even decided that freedom of expression did not constitute due cause to allow the images, as they did not express an opinion or contribute to the public debate. The difference in judgement by both courts on the admissibility of ‘Nijntje staat strak’ and ‘nijn-eleven’, illustrates how the absence of a framework that supports a systematic interpretation of dark parody has significant consequences for the legal protection of taboo-breaking dark humour.

The ‘Black Labour, White Guilt’ parody: Reimagining beer with sarcastic dark humour

The Laugh It Off Promotions v. South African Breweries case (Constitutional Court of South Africa, CCT42/04, 27 May 2005) centres on dark parody and trademark law. This trademark infringement case revolves around a dark parody of the well-known trademark Carling Black Label (‘America’s lusty lively beer; Black Label; Carling Beer; enjoyed by men around the world’) by the clothing company Laugh It Off Promotions CC, who printed their parody on T-shirts with the intent of social commentary and profit (Godioli and Young, 2023: 29). The T-shirt presented a print with a strong likeness to the Black Label trademark with the text ‘Africa’s lusty lively exploitation since 1652; black labour; white guilt; no regard given worldwide’. The owner of the trademark, South African Breweries (SAB) brought legal action to prohibit the use of its trademark by Laugh It Off Promotions, arguing that the parody caused economic harm and damage to the reputation of its trademark via the offensive and ridiculing parodic message it expressed. In its defence, Laugh It Off Promotions argued that the social criticism the parody expressed is protected by the constitutional right to freedom of expression.

After going through the High Court and the Supreme Court of Appeals, the parody dispute eventually ended up in the South African Constitutional Court. Both the High Court and the Supreme Court of Appeals adopted the interpretation of the parody presented by the plaintiff (SAB), who argued that the meaning of the parodic message is that ‘since time immemorial SAB had exploited and still is exploiting black labour, that it has and should have a feeling of guilt, and that SAB worldwide could not care less’ (para. 20). According to the High Court, this interpretation was ‘evidently correct’ and they did not consider any other alternative interpretations of the trademark parody. Based on this interpretation, the High Court considered the parody to border on hate speech due to its connection to race and found that

the expression on the T-shirt is substantially detrimental to the repute of the marks; that it is likely to create in the minds of consumers a ‘particularly unwholesome, unsavoury, or degrading association’ with the marks because it is an ‘unfair’ and ‘unjustified racial slur’ on the trademark owner … the message questions the reputation of the marks and by that very act has unfairly and materially tarnished the marks (para. 21).

In addition, both courts determined the right to freedom of expression irrelevant to the defence, as Laugh It Off Promotions used the brand on T-shirts to generate profit and the courts considered the medium (the T-shirt) unnecessary to convey the message, i.e., the criticism could be expressed in other ways than the T-shirt with the strong likeness of SAB beers. The South African Constitutional Court disagreed and overturned the decision of the Supreme Court of Appeals. While Judge Moseneke, who delivered the judgment of the Constitutional Court, agreed that the trademark enjoys protection against usage that causes material damage to its reputation, he argued that SAB failed to establish the likelihood of economic harm. However, he explicitly refused to consider if the dark parody would be protected by the constitutional right to freedom of expression, deeming the trademark parody admissible ‘based on technical grounds in light of the Trademarks Act’ (Godioli and Young, 2023: 29). In this case, then, the courts considered only the categories of function and affect in their interpretive process—they only looked at the potential economic harm to the trademark holder due to the parody causing detriment to the trademark’s reputation, and only allowed the parody based on the lack of evidence that supported the claim of economic damages by the plaintiff.

A comparative analysis: The framework of parodic distance

As the analysis of the case studies showed, a systematic approach to the interpretive challenges of dark parodies is lacking in current judicial interpretive practices and leads to inconsistent outcomes. In both case studies, the courts’ initial interpretation of both the distance between the dark parody and the original, and the use of dark humour, led to a decision to prohibit the dark parody and thus contract freedom of expression, which was then overturned in subsequent appeal cases. In addition, it is worth noting that the court claimed (part of) their interpretation to be ‘evident’ without offering detailed arguments for this claim in both cases. In the Miffy case, the Amsterdam Court of Appeals stated that the likeness of Miffy was ‘evidently’ parodic use (para. 4.13), and in the Laugh it Off case the Supreme Court of Appeals claims the interpretation of the trademark parody as bordering on hate speech as ‘evidently correct’ (para. 20; 60).

I argue that the claim of a particular interpretation of an expression being evident is a superficial argument at best, and a problematic one at worst, as it ignores the complexity of the meaning expressed by a dark parody, and it conveys a lack of transparency regarding the assumptions and values underlying a particular interpretation. As both case studies show, it is clearly not evident when a parody holds enough distance from an original work or when the dark humour used can be considered hate speech (disparaging dark humour), a challenge to metapragmatic stereotypes about humour (taboo-breaking dark humour), or exposing inhuman attitudes (sarcastic dark humour). The parodic distance framework offers courts a conceptual tool to deal with the interpretive challenges of dark parody in a systematic way, and creates a shared vocabulary to both address the complexity of dark parodies and make the underlying assumptions and values in the judicial interpretation process visible. To illustrate this, the next section analyses the ‘nijn-eleven’ and the ‘Black Labour, White Guilt’ parodies from all six interpretive categories, and provides a comparative overview at the end.¹³

From the content category, the ‘nijn-eleven’ parody reproduced the airplane with Miffy identically from the original book cover, added an apartment building on the right side of the airplane, and changed the text from the original ‘Nijntje vliegt’ [Miffy flies] into ‘nijn-eleven’ . Looking at the style, the ‘nijn-elven’ parody is an exact imitation of the original work, the building is drawn in the exact same style of the original and the lettering used is also similar to the original. From the context category the ‘nijn-eleven’ parody relocates the well-beloved children’s character to the context of the 9/11 terrorist attacks on the Twin Towers in 2001 by portraying Miffy in an airplane flying towards the building and using the text ‘nijn-eleven’, a humorous wordplay on the Dutch word ‘Nijntje’ [Miffy] and English word ‘nine’, which sound similar. The message, since the parody portrays a sinister event and not the victims or perpetrators of the event, could be interpreted as questioning terrorism as a subject with taboo status in humorous expression or questioning the ‘innocent’ character of Miffy. Regarding the interpretive category of function, the ‘nijn-eleven’ parody could be considered a simple entertainment because of the pun, which is only directly understandable for Dutch speakers, and the taboo-breaking effect of the dark humour. From the affect category, the parody can be interpreted as generating a feeling of pleasure from the cognitive reward of dealing with opposite emotions, for example mirth from the humorous pun and feeling horrified to be laughing at a parody that makes the 9/11 terrorist attacks the subject of humorous expression. Considering the interpretive challenge of dark humour presented by the dark parody, the ‘nijn-eleven’ parody could be interpreted as taboo-breaking dark humour, which engages in the questioning of a subject’s cultural and social taboo status—an important role of humorous expression protected by the right to freedom of (artistic) expression.

Based on this systematic analysis, it becomes clear that even though ‘nijn-eleven’ is identical in style, in terms of content, context, message, function, and affect, the parody is quite different from the original work by Dick Bruna. Applying the parodic distance framework offers a fundamentally different interpretation compared to the interpretation of the Amsterdam District Court and challenges the Court’s argument that the ‘nijn-eleven’ parody causes detriment to the trademark’s reputation without due cause. By showing how the use of dark humour in the ‘nijn-eleven’ parody can be interpreted as taboo-breaking dark humour, the analysis argues that the parody challenges the metapragmatic stereotypes about humour in Dutch society, which, arguably, can be considered an important contribution to the public debate. In addition, the interpretation resulting from the application of the parodic distance framework questions the claim of the Amsterdam Court of Appeals that the distance between the parody and original work is ‘evident’, as the interpretation and decision of the Amsterdam District Court was significantly different.

When applying the interpretive framework of parodic distance to the parody of ‘Black Labour, White Guilt’, the categories of content and style illustrate how the parody imitates the Black Label trademark style while simultaneously changing most of the textual elements by replacing ‘Black Label’ with ‘Black Labour’, ‘Carling Beer’ with ‘White Guilt’ and ‘America’s lusty lively beer […] Enjoyed by men around the world’ with ‘Africa’s lusty lively exploitation since 1652 […] No regard given worldwide’. The dark parody thus alters the wording of the trademark while copying its style. On a context level, the parody can be interpreted as relocating the trademark into the social, political and cultural context of black labour exploitation as well as a physical relocation of the trademark from beer bottles to T-shirts. The exploitation of black labour generally tends to be considered a taboo subject for the usage of humorous expression and, as seen in the judgement of the High Court (who interpreted it as bordering on hate speech) can easily be interpreted differently than intended by the parodist. While the High Court and the Supreme Court of Appeals interpreted the parodic message as a racial slur on the trademark owners, Judge Sachs, in his concurring vote on the judgement from the Constitutional Court, interpreted the message as intended by Laugh It Off Promotions: namely, to expose how much power brands hold in society. The function, then, could be interpreted as a social criticism targeting the position of power brands hold in cultural and social life, instead of causing harm to the brand’s trademark. Lastly, from the perspective of affect the High Court and Supreme Court of Appeals considered the parody to create a degrading association between the trademark and the exploitation of black labour, likely interpreting the use of humour in the parody as disparaging dark humour. Judge Sachs’ interpretation, however, shifts the interpretation from disparaging to sarcastic dark humour, as he recognises the use of humour as the intent to make people laugh by ridiculing the dominant position of power well-known brands enjoy in society. This illustrates the blurred lines between disparaging and sarcastic dark humour, and only through a systematic analysis, it becomes clearer why interpreting the dark humour used by the ‘Black Labour, White Guilt’ parody as sarcastic dark humour seems more plausible.

Similar to the case of the ‘nijn-eleven’ parody, the application of the parodic distance framework results in a significantly different interpretation of both the distance between the parody and the trademark, and the type of dark humour used by the parody. While the Constitutional Court’s decision to overturn the judgement from previous courts is in line with the interpretation suggested by the parodic distance framework, it is worth underlining that this decision was only based on the lack of evidence supporting the claim of economic damages presented by the plaintiff. It is worth asking, then, how the Court would have navigated the legal protection of the dark parody, which conveyed valuable social criticism via its use of sarcastic dark humour, had this lack of evidence not been the case. Table 2 below offers a comparative overview of the systematic analysis of both dark parodies with the parodic distance framework.