Reading time: 4 minutes

Advertising and marketing campaigns can make people feel excited, surprised or afraid. There’s no denying that a well-executed parody marketing campaign can make people laugh. Marketers, however, should be wary of the intellectual property issues that arise when they are using someone else’s work to create material. This article will discuss two areas of IP law, and the questions marketers should turn their attention to when creating a parody campaign.

Area of Law Legal Question
Copyright How much of, and for what purpose, will I be reusing someone else’s copyright?
Trade Marks Am I using a parody trade mark as a trade mark? 

Copyright and Copyright material

Copyright subsists in original artistic works including images, videos, music and writing. For this reason, copyright will attach automatically to most of what a marketer creates. As the copyright owner, the marketer then has the exclusive right to reproduce, republish or reuse the material, or to give others permission to do so. If another party uses your copyrighted material with your permission, they will have infringed the copyright and may have to pay damages.

Marketers should take care to identify whether they are using copyrighted material that another party owns. If so, ensure you seek permission from the owner before using it in your own work. There are, however, certain exceptions to this rule.

Fair Dealing Exceptions

The Copyright Act 1968 (Cth) (Copyright Act) lists certain purposes for which a creator does not need to ask permission from the original copyright owner to reproduce their work, namely:

  • research or study;
  • criticism or review;
  • parody or satire;
  • reporting news; or
  • professional legal advice

Marketers can rely on the parody or satire exception as a defence to claims of copyright infringement.

Parody and Satire

The parody and satire exemption falls under the broader heading of ‘fair dealing exceptions’ (i.e. the use of the copyright material for parody or satire must be considered ‘fair’).

The Copyright Act does not define parody and satire. Rather, we rely on the court’s interpretation and general definition to determine whether the material would fall under the fair dealing exceptions.

A parody is a humorous imitation of a piece of work, for instance, a reworked logo of PUMA as TUNA with a fish image. Satire, on the other hand, is usually presented for the purpose of ridicule or criticism. 

The fair dealing exception requires more than the mere presence of humour. You need to know how much of the material you are using is your own work. This is a key factor that the courts consider when determining whether your use of the material is considered ‘fair’.

Parodying Trade Marks

Most trade mark owners are less than enthusiastic about other businesses parodying their mark. While a business may not approve of the parody trade mark, its use is not necessarily unlawful.

Are You Using the Sign ‘As a Trade Mark?’

When it comes to trade mark infringement, the alleged infringer must be using the trade mark as a trade mark. This means that the alleged infringer is using the mark to distinguish their goods or services from other business (i.e. to create a brand that is the same or similar to another business).

A mere reference to the mark or using it as a descriptive term in advertising material may not necessarily be ‘use as a trade mark’. In these instances, you can use another business’ trade mark without infringing their IP rights. You should ask, “will consumers associate our parody brand with the original brand?”

Key Takeaways

Marketers should understand how copyright and trade marks will apply to their campaigns and take care to avoid infringement when parodying another brand. You should make is as clear as possible that your campaign is a parody, spoof or satirical comment of the original work and that your campaign is not associated with the original business.

If you have any questions or need assistance navigating through the relevant IP laws for your campaign, get in touch with our specialist IP lawyers on 1300 544 755. 


Australia’s Global Talent Visa: How to Attract Top Talent

Thursday 7 October | 11:00 - 11:45am

Understand how to navigate Australia’s complex migration system to attract top overseas talent with our free webinar.
Register Now

5 Essential Contracts for your Online Business

Thursday 14 October | 11:00 - 11:45am

Learn which key contracts will best protect your online business with our free webinar.
Register Now

Key Considerations When Buying a Business

Thursday 11 November | 11:00 - 11:45am

Learn which questions to ask when buying a business to avoid legal and operational pitfalls, so you can hit the ground running. Join our free webinar.
Register Now

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. From just $119 per week, get all your contracts sorted, trade marks registered and questions answered by experienced business lawyers.

Learn more about LVConnect

Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

Our Awards

  • 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Winner – Australasian Lawyer
  • 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year - Australasian Law Awards
  • 2019 Most Innovative Firm - Australasian Lawyer