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Since the introduction of parody as a ‘fair dealing’ exception in the Copyright Amendment Act 2006 (Cth), the relationship between parody and copyright law has changed. Copyright law protects and encourages creative expression. However, the risk of this type of law is that it may stifle creativity, unless it includes some exceptions. Parody and satire are two such exceptions to copyright infringement. However, they are still relatively grey areas of the law.
If you are interested in creating your own parody of an existing creative work, read on to make sure you are engaging in ‘fair dealing’.
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Copyright Protection in Australia
Copyright law protects the original expression of ideas. In Australia, it arises automatically. There is no need to apply for copyright protection. Importantly, copyright protects the expression of the idea, not the idea itself. Therefore, copyright protection arises for:
- the expression of artistic, literary, dramatic or musical works; and
- works like films, broadcasts, sound recordings and published editions.
It gives its author exclusive rights to use and commercialise the work.
Copyright protection can last a long time. Generally, copyright extends 70 years from the:
- author’s death;
- date of publication for films and sound recordings; or
- year broadcasts were made.
Copyright Infringement
You cannot directly copy someone else’s creative work. But, can you borrow ideas from others? In Australia, the primary test for deciding whether you have infringed copyright is whether there is an ‘objective similarity’ to the original work. If you have used a substantial part of another work that would make the average person think of the original work, it is likely that you are infringing on that person’s copyright. The similarity only has to be the essential or distinctive part of the work.
If you are found to infringe upon someone else’s copyright, that person may have extensive rights to remedies through the Courts.
What are the ‘Fair Dealing’ Exceptions?
Fortunately, to promote artistic creativity and freedom, there are some exceptions to copyright infringement. These are collectively known as ‘fair dealing’ exceptions. These include circumstances such as:
- research or study;
- criticism or review;
- reporting news;
- a legal practitioner giving legal advice; and
- parody and satire.
To be exempt from copyright infringement, your dealing with the work must first fall within one of these exemptions. It must then be a ‘fair’ dealing. This varies depending on the circumstances of each case. However, fairness will usually require consideration of:
- how much of the work you have used;
- what you have changed or added; and
- whether you have used the new work for a commercial purpose.
These exceptions do not apply to all works of copyright. Instead, they are limited to:
- literary, dramatic, musical or artistic works;
- adaptations of literary, dramatic or musical works; and
- audio-visual works, such as sound recordings, films and broadcasts.
When Does Fair Dealing Include Parody or Satire?
The Copyright Act (1968) does not define parody and satire. Both dealings use humour and comic effect to comment or criticise. However, they have a key difference:
- parody mimics an original work directly; and
- satire uses a work to make a comment about something else entirely.
Ultimately, the comical elements must add to the work in such a way that it forms an entirely unique artistic expression.
However, you should be careful of creating parodic works that cause offence. These can easily cross over into the realm of defamation.
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Key Takeaways
Parody and satire are important ‘fair dealing’ exceptions to Australian copyright law. Many forms of modern day entertainment rely on some kind of parodic or satirical humour to attract audiences. However, it is important to remember that just because something is funny, it could still breach copyright laws. Keep in mind that it should be your unique form of expression that creates the humour in the work. Its core creative essence must not be objectively similar to the original work.
If you have questions about potential copyright infringement, our experienced intellectual property lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Copyright law protects the original expression of ideas. In Australia, this intellectual property right arises automatically. Therefore, there is no need to apply for copyright protection.
Parody and satire are ‘fair dealing’ exceptions under Australian copyright law. Parody mimics an original work directly and satire uses a work to make a comment about something else entirely.
There are certain exceptions to copyright infringement, known as ‘fair dealing’ exceptions. For example, these include circumstances where the material is used for purposes such as research or study, criticism or review, reporting news, providing legal advice or parody and satire.
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