Stories

It has been widely reported (see The Guardian here and here and the BBC, for example) that Paddington & Company Limited, StudioCanal Films Ltd (the producers of the Paddington films), and the estate of its creator, Michael Bond, have sued Avalon, the company behind Spitting Image.  The Claimants take issue with Spitting Image’s portrayal of the much-loved red-hatted, blue-jacketed, marmalade-loving bear as a white-powder-snorting, beady-eyed and rather dishevelled-looking videocast host, alongside Prince Harry: see High Court Claim IL-2025-000187.

In summary Paddington et. al. have particularised their claim as follows:

• The Claimants own copyright in the character of Paddington Bear, as well as registered trade marks of the words “PADDINGTON” and “PADDINGTON BEAR” and for a figurative representation of the bear.
• The Claimant’s successors are entitled to bring proceedings in respect of the late Michael Bond’s moral rights.
• Avalon’s videos amount to copyright infringement and trade mark infringement, and are derogatory treatment of the works.
• Among other things, the Claimants want an injunction preventing Avalon from putting out any more videos depicting the bear, and an order for delivery up of the puppet (or alternatively, destruction of the puppet – though presumably not on film).

It will be interesting to see how Avalon responds – though a number of the accused videos remain on YouTube (see here, for example).  Spitting Image is no stranger to controversy.  In 1986, the High Court was forced to consider whether the TV show’s repeated ‘subliminal’ image of Guiness Book of Records’ co-founder Norris McWhirter’s head, superimposed on the top of a naked woman’s body to create a “grotesque and ridiculing image”, was a criminal offence (it was found not to be: see here). 

Defending an IP infringement claim is no simple task, and we could write at huge length about the various attacks that might be made on the claimants’ copyright and trade mark arguments that might be raised by Avalon (which as of the date of this post, has yet to file a Defence).  In this article, though, we’ve just focused on defences to the copyright infringement claim, namely, parody, pastiche and caricature.

These defences have been codified in s.30A of the Copyright, Designs and Patents Act 1988 (CDPA) since 1 October 2014.  An alleged infringement that is “fair dealing with a work for the purposes of caricature, parody or pastiche” does not infringe copyright in a work.  To break that down: 

• Fair dealing is an elusive concept, but it won’t apply to use that competes with the exploitation of the copyright work, and whether a defendant can rely on it will depend on how much of the original work has been taken, and the purpose of the use.  In Shazam Productions Ltd v Only Fools The Dining Experience Ltd [2022] EWHC 1379 (IPEC) (“Only Fools”), the defendant’s use was found not to be ‘fair dealing’.
• The essential characteristics of parody were defined in the CJEU’s judgment in Deckmyn and another v Vandersteen and others, Case C-201/13: (i) ‘to evoke an existing work’ while (ii) ‘being noticeably different from it’, and (iii) ‘to constitute an expression of humour or mockery’.  The UKIPO’s guidance (here) makes clear that parody “does not have to comment on the original work or its author. It can be used to comment on any theme or target”.  The defendant in Only Fools tried to defend its infringement by arguing that it was a parody, but failed, because (in very short summary), the infringing use made by the defendant of characters, backstories, jokes and catchphrases was not done in order to express humour about, or to mock, the copyright work or anything else – it was closer to an adaptation than a parody.
• The concept of pastiche has been grappled with by the courts in Only Fools and, very recently, by Attorney General Emiliou in Pelham (Notion de “pastiche”), Case C-590/23 (“Pelham II”) (a post-Brexit EU case, but nonetheless a useful guide for UK readers).  In the AG’s opinion, the essential characteristics of pastiche are suggested to be: (i) evokes an existing work, by adopting its distinctive ‘aesthetic language’ while (ii) being noticeably different from the source imitated, and (iii) is intended to be recognised as an imitation.  There was no pastiche in Only Fools: there was no imitation of the style (or aesthetic language) of the copyright work, and there was no evidence that the creators meant it to be a pastiche, nor that consumers had understood it to be a pastiche.  Again, it was closer to adaptation than pastiche.
• Caricature has an even less litigated past.  From what we have been able to find, the concept has never been considered in any detail by the English or EU courts.  The Oxford English Dictionary’s definition is “A picture, description, or imitation of a person in which certain striking characteristics are exaggerated in order to create a comic or grotesque effect”.  The Tate Gallery defines it as “painting, or more usually drawing, of a person or thing in which the features and form have been distorted and exaggerated in order to mock or satirise the subject”.  The UKIPO’s guidance (see here) says that “caricature portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment”.  It will be interesting to see whether Avalon try to argue that their puppet, or the recording of their puppet, is a caricature. 

For my two cents, we think that Spitting Image may well have a strong defence to copyright infringement in parody, and possibly also in caricature: a caricature is often visual, so applying that to puppetry is certainly arguable.  It won’t just be us asking: if Spitting Image isn’t parody, then what is parody?

Parody is not, however, a defence to trade mark infringement.  As we reported for LexisNexis in August 2023 (see here), unlike for copyright, parody is not a statutory defence to trade mark infringement (though true parody and satire may be protected as forms of artistic and political freedom of expression).  Avalon will no doubt come up with some different arguments to beat the trade mark particular claim.

There is a relative dearth of judicial guidance on the parody, pastiche and particularly caricature defences to copyright infringement.  If Paddington’s lawyers push this matter through to a judgment, perhaps we will have a bit more.  Or perhaps the parties will settle – with strings attached.

© Hansel Henson Limited 2025

For advice and representation in copyright and trade mark claims and defences, contact Hansel Henson’s IP Disputes team.