What insights does this recent dispute provide into Australia’s ‘fair dealing’ exception for the purposes of parody?
In November 2013, GoldieBlox, a U.S. company that produces educational toys for young girls, released an online advertisement for their latest range. The ad featured a parody of the Beastie Boys’ 1987 song “Girls”. The use of this song without the permission of the Beastie Boys has resulted in a legal battle about the scope of the American ‘fair use’ doctrine. This dispute also provides some useful insights into the Australian ‘fair dealing’ exception for the purpose of parody or satire, about which there is limited illustrative Australian case law.
The original song lasts for just over two minutes, during which the Beastie Boys rap lyrics like “Girls – to do the dishes” and “Girls – to clean up my room”. The song’s subject matter is controversial to say the least and it’s unclear whether the intention of the original song was to be satirical or sarcastic – were the Beastie Boys commenting on sexist stereotypes or were they just being sexist? GoldieBlox takes the latter view.
The toy manufacturer’s mission statement is to “inspire the next generation of female engineers” and its toys are essentially children’s construction and building sets but with colours and features that might be more appealing to girls. So, in promoting their product, they decided to take the original Beastie Boys track and re-record it with different lyrics tackling existing gender stereotypes, and providing messages of empowerment to a young female audience and their parents.
The ad must have been particularly engaging, as it managed to garner millions of views after being released on YouTube. The resulting public attention led to the Beastie Boys sending a letter of complaint to GoldieBlox, suggesting the company had infringed its copyright. One motivation behind the Beastie Boys’ complaint was the desire of deceased band member Adam Yauch that his music not be used in advertising, which was set out in his will.
Not shying away from a fight (and perhaps hoping to gain even more attention) GoldieBlox then grabbed the issue by the throat and pre-emptively sued the Beastie Boys, seeking a declaration that their parody of “Girls” amounted to a ‘fair use’, and hence was not a copyright infringement.
In GoldieBlox’s original complaint, they claim the Beastie Boys’ song is a sexist anthem, and that because their version challenges the themes and sentiment of the original, it therefore amounts to a parody of the track. But whether or not the song is a parody is only the first issue at play here.
The ‘fair use’ doctrine in the US is enshrined in section 107 of the US Copyright Act outlines the situations in which copyright works can be used without infringing the rights of the copyright owners. In Australia there are similar provisions in the Commonwealth Copyright Act, known as the ‘fair dealing’ exceptions, but the US ‘fair use’ doctrine is broader in scope. The Australian exceptions only apply to prescribed circumstances – such as for the purposes of criticism or review, or research or study. There is also an Australian ‘fair dealing’ exception for the purposes of parody or satire.
So if you intend to create a parody of a copyright work in Australia, such as a film or a song, there are three key issues you should consider. These considerations are based on the judgements in The Panel case, the leading Australian case regarding ‘fair dealing’:
What is a parody?
Unfortunately, the Australian copyright legislation does not define what amounts to a ‘parody’ for the purpose of the ‘fair dealing’ exceptions, and case law provides limited guidance. The court in The Panel case was of the view that imitation was a major aspect of a parody. If you intend on creating a parody using copyright material, you would certainly need to imitate the original work, for the purposes of humour, satire or ridicule.
Is your use ‘fair’?
This is an even more difficult question to determine in copyright cases because a court may form different views regarding the concept of ‘fairness’ and place importance on different factors. However some key considerations would include:
- What is the purpose of the parody?
- Does the parody undermine the integrity of the original work?
- What is the nature of the parody?
- Was the parody widely published? Is it being distributed for commercial gain?
- Does the parody have an impact on the commercial value of the original work?
- Is the original work widely available?
Have you reproduced a substantial part of the work?
In determining whether a use amounts to a copyright infringement, a court may also consider the extent to which you have used or reproduced the original work. This issue would be assessed differently in the case of a parody because in order to imitate a copyright work, you inherently need to reproduce a large part of the original. Take GoldieBlox’s song as an example – they used the tune of “Girls” but with a new recording of the music and new lyrics.
This dispute is still in its early stages, with the Beastie Boys filing a counterclaim to GoldieBlox’s original writ. If the case goes to trial it could become an authoritative case on the U.S. ‘fair use’ doctrine.
In creating a parody, you should consider the issues above and the extent to which you wish to use the original work. You might be creating the work for fun or to be humorous, but if you post the parody online and it gets a lot of hits, the owner of the original work might notice and consider their rights have been infringed.
Vincent Floro is a Lawyer at the Australian Broadcasting Corporation.