Dealing fairly with parody : how literary theory can inform legal definitions

This article is a sustained examination of the definition of parody within the fair dealing exception to copyright. Without a definition of parody that looks to literary theory a parody may come down to what makes a judge laugh. Parody within this arrangement is at risk of being diluted to a mere mockery of texts, relying on dictionary definitions, while the more contemporary understanding of parody “critical ironic distance”, “refunctioned”, “decoding and encoding” of texts is ignored. This article will look at the gap between literary theory and legal definitions of parody and provides a working definition that marries the literary theory to workable criteria for use in the definitional exercise by the judiciary. This engagement with literary theory and practices is needed to avoid the chilling effect copyright litigation has, and to better serve the overall purpose of copyright which is to promote the delivery of new works to the public