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?”
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.
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