In Australian copyright law, a new fair dealing exception for the purposes of parody or satire was recently introduced into the Copyright Act 1968 (Cth). Perhaps unhelpfully “parody” and “satire” are given no definition in the Act.
More helpfully, thanks to an imaginative cartoonist and a miffed copyright holder, the law may soon be tested. But first let's look at the law.
In an excellent Arts Law article1 Sally McCausland points out that Attorney General Phillip Ruddock’s parliamentary speech states the changes help “protect free speech for cartoonists and comics”. McCausland notes we can take cues from US copyright law decisions. They broadly define parody as using a work to criticise the work itself (eg a comedy skit using parts of a movie scene to comment on how bad the movie is).
Bill Leak's Tintin take on Rudd gets a shock
As for satire, they define it as using a work to criticise something other than the work such as politicians, celebrities or society itself (eg a political cartoon which uses comic strip characters to send up politicians).
As it happens, we may soon see if that last example is really satire under Australian law. Crikey recently revealed that political cartoonist Bill Leak’s repeated depictions of the Australian politician Kevin Rudd as comic-book favourite Tintin (as depicted, right) earned him threats of copyright infringement from Tintin’s copyright owners. The cartoonist has reportedly refused to give undertakings to cease using the character in future cartoons and intends on relying on the new fair dealing exception in his defence if action is commenced. We’ll come back to Tintin later.
If you’re considering using someone’s copyrighted work for the purposes of parody or satire, test your legal exposure with the questions below. They cover fair dealing for the purpose of parody or satire, moral rights and other copyright considerations as well as defamation law and trade marks law.
Does your use fit within ordinary dictionary meanings for parody or satire? How do the legal definitions and intent of the laws discussed above apply?
Is the use you’re making “fair”? Think about the purpose and character of the use. A famous US copyright and "fair use" exception case involved a rap song by 2 Live Crew - Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). They produced "Pretty Woman", a song that took some of the music and lyrics from the Roy Orbison song “Oh, Pretty Woman”2. They also sampled the bass riff. The US Supreme court ruled the character of the use was parody, stating “It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works.”
What is the nature and substantiality of the material you are copying? Again the Pretty Woman case is enlightening, where the relevant question was stated as whether the parody "has appropriated a greater amount of the original work than is necessary to 'recall or conjure up' the object of the [parody]."3 Further, Australian courts examined the issue of substantiality in copyright law in The Panel case4, which would have most likely turned out very differently with the new exception.
What’s the likely market impact of your parody or satire? In particular will it adversely affect the original work?
Is the use overly humiliating, derogatory or inappropriate, so as to breach the author’s moral right of integrity?
Is it reasonable in the circumstances to attribute the work forming the basis of your parody or satire to its original author? Just as importantly, make sure you don’t falsely attribute the work. These are both moral rights of original authors. It is best to err on the side of caution, giving credit (attribution) can reduce legal exposure.
Is any element of the original work a protectible trade mark? This will affect you if you are using that element also as a trade mark.
Is the use defamatory? Famously, Australian architect Harry Seidler sued Fairfax over a cartoon by Patrick Cook that depicted one of Seidler's buildings in a bad light. The court decided the cartoon was a joke and readers would not seriously consider it a statement of fact.
Can you get permission from the original's owner? This can be difficult, if not downright impossible when it comes to sending someone up. 2 Live Crew had requested a licence to "Oh, Pretty Woman". The refusal letter stated: "I am aware of the success enjoyed by `The 2 Live Crews', but I must inform you that we cannot permit the use of a parody of `Oh, Pretty Woman."
Even better, ask the above questions to your lawyer
Final word on Tintin
Back to Tintin, because the Australian satire exception is untested it’s largely unclear exactly how the law will be applied. However, given the much publicised political intentions of the legislation and accepted definitions of satire, Lightbulb would advise Tintin’s copyright owners that it is more than likely their chances of success against the cartoonist are looking rather Bleak.
UPDATE 4 June 2007
Tintin's copyright owners must have read this article! They have reportedly conceded they cannot stop Leak using Tintin for purposes of satire and have dropped their demands that he do so. They are now only demanding that no Leak cartoons featuring Tintin be sold.
1 Sally McCausland, New Room to Lampoon: The new fair dealing exception for parody or satire, ART+law, p1 March 2007.
2 United States Supreme Court in Campbell v. Acuff-Rose Music, Inc. (1994)
4 TCN Channel Nine Pty Ltd & Ors v Network Ten Pty Ltd  FCA 108