Judge Dredd’s Burger Wars: Intellectual property, self-censorship and new exceptions

‘Beyond the Graphic’ – Considering Violence, Sexuality and Obscenity in Comics

After years languishing in self-censorship due to fears of UK copyright law, a new EU directive has led ‘Burger Wars’ to re-emerge. Written by John Wagner (under the pen name TB Grover) and drawn by Mike McMahon in 1978, this ‘difficult tale’ of corporate America and the inherent crimes of the fast food industry finds the immutable Judge Dredd embroiled in a protracted war between the world’s biggest hamburger chains. The military operations commanded by the Burger King on one side and a familiar clown called Ronald – sporting a stripy top with familiar golden arcs ‘m’ logo thereon – who runs MacDonald (sic) City, on the other. Dredd and his team find themselves captured and force fed high-fat, high-sugar burgers and shakes. The suppressed story has recently been published (alongside Soul Food which had upset the ‘jolly’ Green Giant Company, amongst others) in Judge Dredd: The Cursed Earth Uncensored series.

In the weird, post-apocalyptic ‘McDonald City’, burger barons have taken control of Middle America, to be worshipped with terrifying devotion. Image by John Wager and Mick McMahon (1978). Reproduced here under fair dealings provisions for academic purposes. © Rebellion Developments

The rule allowing for this long delayed publication comes from Directive 2001/29/EC of the European Parliament and of the Council (22nd May 2001) on ‘the harmonisation of certain aspects of copyright and related rights in the information society’ enacted into UK law by statutory instrument No. 2356 of 2014: The Copyright and Rights in Performances (Quotation and Parody) Regulations, made on 26th August 2014 and came into force on 1st October 2014. Article 5 of the Directive, entitled ‘Exceptions and limitations’, provides, in paragraph 3(k), an exception for “use for the purpose of caricature, parody or pastiche.”

No definitions of ‘parody’, ‘caricature’ or ‘pastiche’ appeared in the Directive (or anywhere else in EU Law) so we have to reply on a definition from everyday language. The Oxford Dictionary definition of parody: “An imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect”. In the Deckmyn v Vandersteen case (C-201/13; EU:C:2014:2132; [2014] Bus. L.R. 1368 (ECJ (Grand Chamber)) the Court held that Article 5(3)(k), “must be interpreted as meaning that the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery”. Nobody who has read Burger Wars would expect to find it, or even excerpts from it, at the bottom of a Happy Meal – its message immediately confirms to the reader that it is not McDonalds, or Burger King, material. So what about the second part of the test – humour or mockery; or, as the UK Government Intellectual Property Office sees it: “parody imitates a work for humorous or satirical effect.”

There may be a problem with the parody defence for Burger Wars: if any action were taken, a UK Judge must find the comic funny. I have stood before judges in the UK courts, and getting them to giggle at a comic book about corporate malfeasance is going to be a challenge. I would therefore recommend the ‘caricature’ defence, in the view of the UK Intellectual Property Office (IPO): “A caricature portrays its subject in a simplified or exaggerated way”. Or as Oxford English dictionary says: “”A picture, description, or imitation of a person or thing in which certain striking characteristics are exaggerated in order to create a comic or grotesque effect”. (Judges do use dictionaries when a legal definition is elusive or ‘everyday meaning’ is called for.) ‘Caricature’ seems to be more suited to a comic book depicting an evil hamburger corporation as an evil warmongering hamburger corporation. Pastiche refers to music and so sn’t relevant to Burger Wars.

In spite of these new exceptions, there is of course always a potential libel angle in the UK, a jurisdiction so skewed against defendants of defamation actions that people travel from all over the world just to issue in London. A defamation case could of course still be a headache for Dredd. But McDonalds have been badly burned in the recent past. The ‘McLibel case’ (McDonald’s Corporation v Steel & Morris [1997 EWHC QB 366]) was – at 10 years – the longest running case in England & Wales legal history. McDonalds Corporation had unadvisedly filed against environmental activists Helen Steel and David Morris. The duo had produced a pamphlet critical of the company’s practices. The greatest error was. McDonalds, completely underestimating the tenacious defendants, won some of the case and lost on other points but the dramatic reputational damage caused by running the gruelling action was devastating to the company. Franny Armstrong and Ken Loach made a good documentary, McLibel, about the case.

Another obstacle to the new exceptions may lie within Section 80 of the Copyright, Designs and Patents Act 1988, which gives authors the right not to have their work subjected to ‘derogatory treatment’, which involves “distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director”. The analogy of a Ronald of MacDonald City (sic) force-feeding law officers junk food does not reflect well on an international corporation committed to selling high volumes of cheap food of questionable nutritional value to 1% of the world’s population every day, with 3.5 million customers in the UK every day (figures from 2011).

After 10 years of researching corporate crime, I see Burger Wars as a frightening but not impossible vision of our future. A future that is almost guaranteed if the world’s largest and most aggressive corporates are not reined in. Shell and Coca-Cola have, for example, already been accused of militarising their operations. Companies like McDonalds and Burger King have massive economies, larger than many countries. We will have greater challenges ahead with powerful transnational corporations before they are finally relegated to the cursed earth.

Dredd’s writing team were not only parodying McDonalds and Burger King. They were expressing through comic and caricature – simplified and exaggerated – an ever-present human fear of out-of-control mindless, soulless corporations taking over the world. It is a process which is already well underway.

Thomas MacManus

Thomas MacManus has a PhD in Law and Criminology (King’s College London). He is admitted as an Attorney-at-Law (New York) and Solicitor (Ireland). Thomas is Associate Editor of State Crime journal, and Joint Editor of Amicus Journal: Assisting Lawyers for Justice on Death Row.

About Thomas MacManus

Thomas MacManus has a PhD in Law and Criminology (King’s College London). He is admitted as an Attorney-at-Law (New York) and Solicitor (Ireland). Thomas is Associate Editor of State Crime journal, and Joint Editor of Amicus Journal: Assisting Lawyers for Justice on Death Row.
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