Fair crack: criticism and copyright

Imagine you are an artist with a message you want to get out there about the way in which mass consumerism has transformed our culture, or about the damage that the beauty myth does to our society.  You cast around for an image that will conjure up these ideas to your audience and, in a flash of insight, you think – “Barbie”!  You decide to create a series of artworks based around distorted versions of Barbie.  You take photos of nude Barbie dolls with limbs chopped off and generally make the most of this doll’s iconic status to bring your point home.  Then you realise, “Hey, Barbie’s a copyright work.  What is my legal situation if the copyright owner complains?”  Real life American artist Tom Forsythe found himself in this situation when he was sued by Mattel for his use of Barbie in his artworks.

Another example of a scenario where you might want to use another person’s work in your own work could be where you want to create a webpage about a TV show, book or film. You want to be able to critically assess and compare the main character’s latest hairstyle or scriptwriter’s lack of imagination and, to this end, you want to reproduce photos of the character or chunks of the script.  What can you and can’t you do under Australian law?

Fair dealings under Australian copyright law

In Australia you are allowed to reproduce or otherwise use someone else’s copyright work for free and without permission if your use amounts to a “fair dealing” for a particular purpose.&nbnbsp; The permitted purposes are:

  • for research or study
  • for criticism or review
  • to report the news
  • to give legal professional advice.

The fair dealing ‘defences’ exist because public policy considers that the public interest in allowing some fair use of a person’s work for certain limited purposes is greater than a copyright owner’s interest in having absolute control over their work.  The rest of this article is about fair dealings for the purpose of criticism and review.

What is “criticism or review”?

The terms ‘criticism’ and ‘review’ mean to make some analysis or judgment about the quality of the thing being criticised or reviewed.  Criticism may be strongly expressed and may also be made in a satirical or humorous way.

The criticism or review must be about the work being dealt with or another copyright work.

To be legal, your use of a copyright work for criticism must be to criticise the work you are using or another work – but not something else altogether.  For instance, your criticism may be directed at the work you are using – like where you reproduce a poem or photograph for the purposes of commenting on and critiquing it.   Your criticism may also be directed at other works.  For example you may copy the lyrics of Run DMC to compare them critically with the work of Eminem.  Also, your criticism or review may extend to the ideas or philosophies underlying the work(s) you are reviewing and does not need to be limited to the actual language or expression used.

The copyright work being used must be sufficiently acknowledged.

You must acknowledge the author and source of copyright works you use to be able to rely on the defence of fair dealing for the purpose of criticism or review.

The dealing must be “fair”

As well as being for a permissible purpose, your “dealing” with another person’s work must be “fair”.  What is “fair” will depend on all the circumstances of the case, but there are some factors the courts will invariably consider.  Foremost among these is that the motive of “criticism or review” is genuine.  If you have another agenda apart from critiquing, this may disqualify you from relying on the fair dealing defence.  So, if you are really trying to make money by using someone else’s work you will not be able to get away with this by dressing your use up as criticism.  Ask yourself, “would a fair-minded and honest person deal with the copyright work in this way?”

The amount and substantiality of the portion used relative to the whole original work is also important.  The more you take the less likely it is to be “fair”.  You are not normally allowed to copy a whole work except in the case of very short works.

Other relevant considerations include the effect on the value or potential value of the copyright work and whether the owner might reasonably expect such a use to be made of the work.  For instance, professional creators hope and even expect that their published works will be reviewed; uses which are anticipated in this way are more likely to be “fair”.  A review, whether positive or not, is more likely to enhance the value of the work and not prejudice the copyright owner’s ability to exploit the work for themselves.

A use of a work that has never been published is less likely to be fair.  Similarly, it will seldom be fair to use a work which you have obtained through illegitimate means, like by theft or a ‘leak’.

Often you will need further legal advice to determine whether you will be able to rely on the defence of fair dealing for the purpose of criticism or review in your specific circumstances.  That’s when you should call Arts Law, the Copyright Council (tel: 02 8815 9777) or your own lawyer.

Simon Etherington is a former Arts Law legal officer.

Note: the law has changed since this article was first published. For a discussion of the new satire and parody exceptions please see the 2007 article New Room to Lampoon.

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