Australia Day Update: Fair Dealing in the Lamb Advertisement

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Table of Contents

• Copyright Infringement
• Australia’s Fair Dealing Exception

Meat & Livestock Australia (MLA) launched its advertising campaign to encourage Australians to eat lamb this Australia day. The MLA advertisement has over 2 million views on YouTube.

The video features SBS news presenter Lee Lin Chin instigating ‘Operation Boomerang’, a mission to bring back Australians around the world so they can enjoy quality lamb. Although the advertisement generally received a positive response from viewers, MLA faced some criticism from animal rights groups.

On 19 January 2016, the Advertising Standards Board ruled that they did not consider the advertising campaign breached the Australian Association of National Advertiser’s Code of Ethics, and MLA was off the hook.

Of course, a ruling by the Advertising Standards Board doesn’t mean that MLA and their advertising campaign is exempt from any criticism. On 12 January 2016, animal rights group Aussie Farms posted a parody video of the advertisement. The video used a clip from MLA’s video, together with footage showing an abattoir in Wangaratta, Victoria.

The video was uploaded to Aussie Farms’ Facebook and Vimeo pages with the headline, “Hilarious behind the scenes clip from the new Aus Day Lamb ad”.

Two days later, MLA sent a take-down notice to Aussie Farms claiming that the use of the clip from MLA’s video was a breach of copyright. In true activist style, Aussie Farms responded by starting a fundraising appeal to broaden the parody video’s reach instead of removing the video.

Copyright Infringement

Copyright is an exclusive right that is automatically attached to a piece of work upon creation. It allows the copyright owner to reproduce or republish the work, or give another permission to use the work. Someone who reproduces copyright material needs to do so with permission from the owner, or they may be infringing the copyright.

MLA, as the owner of the copyright attached to the video advertisement, has the exclusive right to use the video, including clips. MLA’s take-down notice is on the basis that Aussie Farms used the clip from the video without MLA’s permission.

Australia’s Fair Dealing Exception

Aussie Farms is relying on the fair dealing exception to get them off the hook. Under Australian copyright law, people are allowed to use copyright material without permission from the owner if it is for a fair dealing purpose. Fair dealing purposes include for reporting the news, for research or study, for criticism or review, or for giving legal advice.

For Aussie Farms to rely on the fair dealing exception, they need to satisfy a few requirements.

1. The criticism must be targeted towards the work being used or another work, i.e. the copyright material is used to make a comment or judgment.
2. The copyright material and owner must be sufficiently acknowledged. An acknowledgement of the source is necessary, but permission from the owner is not.
3. Aussie Farms’ purpose must be genuinely for criticism or review, and fair. Sometimes people claim that they are using copyright material for criticism or review, but they may have another reason for using someone else’s work.
4. The proportion or substance of the copyright material is considered. The larger the proportion of copyright material that is used, the less likely it is to be considered fair. Aussie Farms used seven seconds from a two-minute video.
5. The effect of the fair dealing use on the value of the copyright material. Some copyright owners anticipate their work being used for criticism or review, and in some situations, it adds value to the original copyright material. In other situations, it could bring negative attention to the copyrighted work and decrease the value. 

Although an advertisement like MLA’s video was not created expecting criticism, this controversy may have increased their viewer reach, which for an advertisement campaign may not be all that bad. 

Intending to create a parody video, or sample another’s music in your podcast? Get in touch with our intellectual property lawyers and ask your questions about copyright or fair dealing.