05 Aug 2021

When is a parody or satire also "fair"? Section 41A of the Copyright Act 1968 (Cth) explained

By Simon Holloway, Sam Fiddian and David Benson

Those seeking to rely on the defence should think carefully before attempting to wrap blatant copying in a thinly veiled veneer of "parody" and calling it "fair".

Parody and satire are a valued part of Australian culture.  Introduced in 2006 to allow "our comedians and cartoonists to use copyright material for the purposes of parody or satire", section 41A of the Copyright Act 1968 (Cth) provides a statutory defence to copyright infringement where the use of copyright material constitutes a fair dealing for the purpose of parody or satire.

However, despite Australia's penchant for parody and satire, the operation and scope of section 41A has received little judicial attention. In addition to making waves for its approach to damages, Justice Katzmann's decision in Universal Music Publishing Pty Ltd v Palmer (No 2) [2021] FCA 434 provides much needed guidance on the operation of the defence in section 41A and exposes the difficulty in relying on the defence as a fall-back or last resort when fighting allegations of infringement.

The defence, like others in the "fair dealing" stable, is there to protect those that make a deliberate and objectively fair use of copyright material for particular purposes. But, given the difficulties associated with determining whether the defence applies, careful consideration needs to be given to the application of the fair dealing defences to the parody or satire which is proposed.

infringement and the defences

Copyright protection automatically arises when an author creates particular forms of "work", such as musical works, literary works and sound recordings. Copyright protection provides the owner (or their licensee) the exclusive right to exploit the copyright in that work. This includes the right to reproduce, copy, communicate the work to the public, publish, perform and adapt the work.

If another person who is not authorised by the owner does any of the aforementioned acts with the work then they could be liable for copyright infringement. However, it is a defence to copyright infringement if the acts that are said to have infringed the copyright constitute fair dealing with the work done for the purpose of research, study, criticism, review, parody or satire.

Setting the scene

Universal Music Publishing Pty Ltd (Universal) was contacted by an agent seeking to obtain a licence to create an edited version of the cult hit song "We're Not Gonna Take It" (WNGTI) for the purpose of a political campaign which was ultimately revealed to be in support of Clive Palmer's United Australia Party. The negotiations broke down for numerous reasons, including the artistic sign-off required by Dee Snider as the original author of the song.

Despite not being able to obtain a licence to WNGTI, advertisements in support of the United Australia Party were produced and broadcast. These advertisements displayed visual images of political issues with an audio overlay of the chorus of WNGTI but with the lyrics amended to versions of "Aussie's Not Gonna Cop It" (ANGCI). Universal commenced proceedings for copyright infringement. Mr Palmer argued that the inclusion of ANGCI in the ads constituted fair dealing for the purpose of parody and satire. In order to be successful in this defence, Mr Palmer bore the onus of establishing that use of ANGCI in the advertisements was both "fair" and done for the purpose of parody and satire.

Proving "fairness" in a fair dealing

Parliament has largely left it to the Courts to determine whether a dealing is "fair". In considering the "fairness" element in the context of section 41A, her Honour stated that the Court could have regard to the following factors:

  • 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 [or] taken in relation to the whole work or adaptation (These factors have only been included in the Copyright Act in respect of the section 40(1) fair dealing defence for the purpose of research and study but her Honour saw no reason why they could not be considered in respect of the other fair dealing defences).

Her Honour placed much weight on the fact that a licence to use WNGTI was available within a reasonable time and at an ordinary commercial price. Further, her Honour pointed out that WNGTI had a market for political usage being a protest song and its unauthorised use by Mr Palmer could affect this market.

In her matrix of factors to be considered, her Honour also made note of US case law on "fair use" provisions which consider whether the parody or satire had new transformative value. In light of this, her Honour concluded that Mr Palmer's dealing was not transformative, had only negligible creativity involved and that it was plain that he was seeking to capitalise on the notoriety and popularity of WNGTI. For those reasons, her Honour could not be satisfied that Mr Palmer's use of the copyright works constituted a "fair" use of the copyright in WNGTI.

Was the use of the copyright material for the purpose of the creation of parody or satire?

It was argued that the advertisements, through their images and composition, were for the purpose of satirising or parodying a number of political issues. However, in her analysis of each video, her Honour concluded that the videos did not involve "an ironic, sarcastic, scornful, derisive or ridiculing criticism of some vice folly or abuse" and substantially were for the purpose of communicating political messages.

Her Honour went further by making the point that, to rely on the section 41A fair dealing defence, the copyright material that has been used must be directed towards the purpose of creating a work of parody or satire. In this case, her Honour found that the copyright material that had been used was the lyrics and melody of WNGTI, not the images and overall production of the advertisements. That is, the use of the WNGTI lyrics and melody did not itself constitute a parody or satirise anything or anyone.

This is a significant, if not subtle, point that could be decisive in determining whether a fair dealing defence may be relied upon and it raises several additional questions. It remains to be seen what will constitute the minimum connection between the use of the copyright material and the overall production of the parody or satire. Does the copyright material have to be an essential element in the parody and satire to meet this standard?

For example, consider the television show "Mad As Hell", in which the host Shaun Micallef has made numerous satirical remarks in respect of former politician Malcolm Turnbull while playing the chorus from the song "Smooth Operator". In these scenes, the use of the song's chorus arguably creates both a humorous joke to entertain the audience but also, when considered in the context of the remarks by Mr Micallef, creates a satirical comment on how Mr Turnbull operates as a politician. However, the lyrics and melody of the song, which are protected by copyright, would not have a satirical meaning but for the context of the remarks from Mr Micallef. To determine whether or not the fair dealing defence of satire would apply to the use of the "Smooth Operator" chorus, it needs to be asked whether the "Smooth Operator" chorus was used for the purpose of parody and satire or merely added to some already satirical comments/material. If the answer is the latter, then based on her Honour's findings in Universal Music as to the "purpose" for which the copyright material was used, the defence may not be available.

Conclusion

There are a number of factors that can be considered to ensure a dealing would be sufficiently "fair" to rely on the fair dealing defences. In particular, the fair dealing defences should only be relied upon in circumstances where there has been a legitimate attempt to create a piece of parody or satire. However, the failure to obtain a licence to use copyright material in a parody or satire, even if it is available within a reasonable time and for an ordinary commercial price, is not the determinative factor. Indeed, in many cases the author or owner of the copyright in a work could refuse to give such a licence to avoid opening up their work to scorn or ridicule, which would defeat the purpose of this fair dealing defence.

That said, it is plain that merely stating that a dealing with a copyright work was for the purpose of parody or satire due to the nature of the ultimate product produced is likely to be insufficient. Specific attention should be directed to ensuring that the use or dealing with the copyright material is directed to an accepted fair dealing purpose, whether it is research, study, criticism, review, parody or satire. This connection may not always be clear and if there is any doubt as to whether there is a sufficient connection between the use of the copyright material and a fair dealing purpose then legal advice should be sought to avoid an outcome like that experienced by Mr Palmer.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.