So you have a funny idea for a parody video of Twilight, or a meme of your favourite actor. Perhaps you admire the presenters’ style on The Chasers, or found the recent parody video made by Sydney University funny, and have been inspired to make a parody of your own. How will you know whether or not you are breaching the owner’s rights under the Copyright Act 1968 (Cth)? Parody and satire are still grey areas in Australian copyright law, with few cases commenting on the fair dealing exceptions introduced in 2011. So what is it that makes ‘poking fun’ okay?
Copyright Protection in Australia
In Australia, copyright law protects the original expression of ideas. It is an automatic right, and depending on the type of work, the rights the owner have can include an exclusive right to use the work, license it to others, perform the work in public, broadcast, publish or make an adaptation of the work. It is important to remember that copyright protects the expression of the idea, not the idea itself.
Copyright lasts for 70 years from the author’s death, or in the case of films and sound recordings, 70 years from their publication, and for broadcasts 70 years from the year they were made. That’s a long time to hold on to a great idea!
In Australia, the primary test for deciding whether a user has infringed copyright is whether there is an ‘objective similarity’ to the original work. Generally, a parody that uses a substantial part of a work would satisfy this test as it causes the audience to recall the original work and reflect on it to see the humour. If there were no defence for copyright infringement in such cases, artistic creativity and freedom of expression would be greatly stifled.
What is ‘Fair Dealing’ and When Will it Protect my Parody?
In Australia, there are specific exceptions to copyright infringement known as ‘fair dealing’. Parody (or satire) is one of these exceptions. The parody exception applies if the use of the work is considered ‘fair’ and varies depending on the circumstances of each case. Fairness will usually require consideration of how much of the work is used, what has been changed or added, and whether the new work is used for a commercial purpose.
Parody and satire are not terms defined in the Copyright Act. It is likely courts will then revert to a dictionary definition. For example, the Oxford definition of parody is ‘an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect’. In this sense, it is unlikely using a substantial part of a work that is in itself comical, will fall under the exception. The new form of artistic expression must be the cause of humour. With satire, it is generally the social commentary that makes the work humorous.
Artists and writers should be careful however of creating parodic works that cause offence as these can easily cross over into the realm of defamation. The courts will look at such cases and consider whether a reasonable member of the public would consider the imputations made to be truth.
Copyright laws are in place to protect the creative expression of artists so they may benefit from their work, and encourage the continuous creation of new works. Without some exceptions, however, some forms of expression may become stifled. Parody and satire are one of those areas.
While parody and satire are an exception under fair dealing in Australia, it’s important to remember that just because something you create it funny, doesn’t necessarily mean it will not breach copyright laws. The work will need to be a new form of expressing the original work that in itself creates humour, and it must be considered a ‘fair’ use of the original work. Questions? Get in touch with our intellectual property lawyers.