In Australia, copyright subsists in original literary works, dramatic works, musical works, and artworks.
A breach of copyright can occur when a person makes use of copyright material without the consent from the original author.
However, under section 41A of the Copyright Act 1968 (Cth), it is a defence to copyright infringement if the material is used in fair dealing for the purpose of parody or satire.
To make out the defence under s 41A, two elements must be made out:
- Use of material must be for parody or satire; and
- The use must be a fair dealing.
Parody has been interpreted by courts to mean “a humorous or satirical imitation of a serious piece of literature or writing” of which imitation is a central aspect. Whether the material is viewed as a parody will depend on the facts of the case.
However, previous cases in this area suggest:
- Parody involves some elements of imitation, but there must be some degree of dislocation from the original work in that the parody is the product of mental labour that has produced a new work;
- The parody must make some comment on the original work; and
- Parody may rely on the audience’s awareness of the original work, but cannot merely be used as a shield to protect creators who don’t want to go to the trouble of creating something fresh or new.
The following factors are relevant to determining whether a dealing is fair:
- The purpose and character of the dealing;
- The nature of the work or adaptation;
- The possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price;
- The effect of the dealing upon the potential market for, or value of, the work or adaptation; and
- in a case where part only of the work or adaptation is reproduced—the amount and substantiality of the part copied taken in relation to the whole work or adaptation.
The recent decision of Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 involved the unauthorised use of the melody and lyrics to Twisted Sister’s hit, We’re Not Gonna Take It by Australian billionaire Clive Palmer during the last Australian federal political campaign.
In April 2021, the Federal Court of Australia found that Mr Palmer had in fact committed copyright infringement and held that Mr Palmer acted in flagrant disregard of Universal’s rights.
The Court also considered the defence of ‘fair dealing’ that was raised by Mr Palmer in that matter.
The Court decided that Mr Palmer’s actions were opportunistic, concluding that the primary intention of Mr Palmer’s use of the works was for a political campaign, and not for purpose of parody or satire.
Therefore, if you are considering relying on satire or parody as a defence to copyright infringement, the following considerations may be relevant in establishing fair dealing:
- Whether the infringing material competes with the commercial interests of the copyright owner;
- The likely perception of the viewers of the impugned work is relevant, with consideration given to whether sensible viewers would conclude that the work emanated from the copyright owner;
- The purpose of the usage, which, although is assessed objectively, involves reference to the intentions and motives of the user of the copyright materials; and
- Whether the copyright material is being used “solely to capitalise on to “cash in” on its originality and popularity”.
If you are an individual or business who is considering relying on satire or parody as a defence to copyright infringement or have experienced a third party relying on this defence in the use of your copyright material, please contact the Intellectual Property Team at Rouse Lawyers.
The information contained on this website is for general guidance on matters of interest only. The application and impact of laws can vary widely based on the specific facts involved.
Accordingly, the information on this site is provided with the understanding that the authors and publishers are not providing legal advice. As such, it should not be used as a substitute for consultation with professional legal advisers. Before making any decision or taking any action, you should consult with a professional lawyer from Rouse Lawyers.