New room to lampoon: The new fair dealing exception for parody or satire
Sally McCausland is a Senior Lawyer at the Special Broadcasting Service and a former Supervising Legal Officer at the Arts Law Centre. This article expresses her personal views. Thanks to Arts Law staff for assisting with examples of pre-amendment advices on parody and satire, and to Kate Gilchrist, Anna Ward, Katherine Giles and Alison Patchett for their comments on an earlier draft.
Australian comics, writers, artists and performers practising the arts of parody and satire have new legal freedom to use copyright material in their work. On 11 December 2006 a new fair dealing exception for the purposes of 'parody or satire' (the 'new exception') came into effect under the Australian Copyright Act.
What is meant by 'parody or satire'?
The terms 'parody' or 'satire' are undefined, and will be interpreted by the courts. Courts sometimes use dictionaries to assist in determining the ordinary meaning of words. They can also refer to the legislature’s intentions by referring to Parliamentary speeches and reports of inquiries. A court may also survey the historical origins and contemporary influence of parody and satire as genres well known in the arts.[ii]
In the Attorney-General’s second reading speech to Parliament he referred to the new exception as protecting free speech for cartoonists and comics. Dictionary definitions of parody emphasise its quality of humorous imitation; and in relation to satire, its purpose of ridiculing a subject with humour or irony. However, the Australian Macquarie Dictionary definition of parody includes 'satirical imitation', and as genres, the terms can describe various intersecting forms of critical and comic expression. A court might therefore adopt a broad definition of the phrase 'parody or satire' as, for example, overlapping genres of critique and humour referencing an original work.
An alternative legal approach to parody and satire is found in some US court decisions which have determined that 'parody' imitates the original work to comment critically on it whereas 'satire' uses the original work in order to attack some external social issue or individual, not the original work itself. A work held to legally qualify under this definition of 'parody' was The Wind Done Gone, a novel critically retelling the famous novel Gone with the Wind from the African-American perspective.[iii] A work legally qualifying as "satire" in the US was a photographic collage by Jeff Koons using part of a Gucci advertisement to comment on contemporary media and society.[iv] The distinction between the terms matters in US law because 'satires' are harder to justify as 'fair' under US law than 'parodies'. Although not bound to follow these cases, an Australian court may find this approach persuasive.[v]
The drafters of the new exception indicated that not all 'transformative' uses of copyright would be covered. For example, it may be that the use of copyright material in some forms of 'appropriation art', or for 'mere' entertainment, will not qualify as parody or satire.
Risky business: what you couldn’t do before
Not every parody or satire was previously at risk of copyright infringement. For example, the use of material which was out of copyright (such as the Mona Lisa, on which Duchamp famously applied a moustache), the use of broad themes rather than specific copyright works, or the use of 'insubstantial' parts of copyright material.[vi]
However, common forms of social commentary such as song parodies and film spoofs, the satirical 'recoding' of popular culture in appropriation art, or the humorous sampling of TV footage in comedy programs, often use substantial parts of copyright material.The lack of any defence to copyright infringement for parody or satire has created difficulties for some Arts Law callers in the past:
- An Arts Law caller was planning an exhibition featuring large sized reproductions of photographs from an advertising campaign that he digitally altered to satirise the idealised imagery being presented. He was advised there was a risk of being sued for copyright infringement by the advertiser.
- An Arts Law caller wanted to paint a mural of a famous photographic portrait with small details changed to comment critically on the original.
- Callers have been warned of the risks of parodying scenes, images and characters from well known films, songs and games in dramatic productions, short films, promotional materials or stand up comedy.
- A caller used a character from a science fiction film in an artwork for satirical purposes, and was advised that there was a risk of infringement.
- An art gallery had received a letter of demand about an exhibited sculpture which parodied a popular children’s character.
Other reported examples of parody and satire attracting copyright problems include:
- An animal rights group distributed t-shirts at the Sydney Olympic Games showing an altered version of the SOCOG Olympic logo to make it look like a battery hen in a cage. SOCOG successfully sued for copyright infringement.[vii] [See further 'Art and the Olympics' (Art +Law, 1999 Issue 4)]
- The Channel Ten satirical talk show program The Panel regularly showed and commented on clips of programs from other networks. The Prime Minister and Boris Yeltsin were among the public figures ridiculed through the use of these clips. Channel Nine sued for copyright infringement in 20 clips. Some uses of the clips were found not to infringe because they fitted the defences of criticism and review or reporting the news. However, other clips, while found to be 'satirical', still infringed copyright.
- In a submission to the Attorney-General in support of the new exception, the Age newspaper was reported to have received a letter of demand alleging copyright infringement by a Leunig cartoon commenting on the crassness of party celebrations at Gallipoli, which quoted a couple of lines from the Bee Gee’s tune 'Stayin’ Alive'.
- Just before last year’s Ashes test series, the Australian fan club the 'Fanatics' distributed a free song book containing changed lyrics to well known songs. The media reported that music copyright owner EMI sent the Fanatics (www.thefanatics.com.au) a letter of demand alleging copyright infringement. The Attorney-General cited this as an example of the need for the new exception:
"…In circumstances that are fair, it will mean that groups like the Fanatics will be able to parody popular songs in response to the Barmy Army…patriotic Australians will be free to mock the British team without the fear of lawsuits…"
*Not all of these examples may now be risk-free. Check with Arts Law before proceeding with your project!
How does the new exception for parody or satire change what you can do?
In the past, where a caller to Arts Law wished to use copyright material for parody or satire [see breakout box] they would usually be advised either to seek permission from the copyright owner or choose other material. (There was some theoretical scope to use the 'criticism and review' defence but only in limited circumstances.[viii]) However, seeking permission did not always work. Some copyright owners do not want their work 'sent up' or put in a critical context. For the emerging artist, seeking permission to use what is often a famous work for a small-scale project can be daunting and time consuming. Likewise, 'choosing other material' is not always aesthetically viable.
The new exception therefore opens up greater latitude to experiment with copyright material for parodic and satirical purposes. In circumstances which are 'fair' (see below) no permission or payment will be needed. However, it is not open slather. The law is untested in the courts and is unpopular with some copyright owners. The following is a guide to some of the issues. As always, get legal advice on your situation.
What copyright material can be used?
Under the new exception you can now make a fair dealing with the following material for the purpose of parody or satire:
- literary, dramatic, musical or artistic works (or adaptations of literary, dramatic or musical works), such as books, plays, songs, lyrics, computer games, paintings, graphics, cartoons, online text, photographs and sculptures; and
- sound recordings, television programs and films.
These can be Australian or from overseas.
The application of the new exception to performances is unclear, so seek legal advice if you wish to, for example, remix a recording of a James Brown performance for parodic or satirical purposes. You could, however, safely use performances which are out of copyright. Check with Arts Law.
What does 'fair dealing' mean?
A 'dealing' means just about any use of the whole or a substantial part or parts of the material (for example copying, broadcasting, putting online, sampling, adapting, performing and so on).
The meaning of 'fair' is the key here. 'Fair' depends on various factors, such as the amount of copyright material used, and the quality – whether you are using the key elements of the work. It is clear that parody requires substantial copying of key elements of the original in order to imitate it. The courts may therefore take a generous view of fair dealing for parody. What is 'fair' for satire will depend on the court’s view of what is necessary in the particular context of use. Other factors relating to fairness may include the purpose, context and originality of the use; whether consumers would be likely to buy the parody version instead of the original; or whether the use interferes with established markets for the original work (e.g. use of a parody of a hit song as an advertising jingle is unlikely to be 'fair' if the original song is already advertising other products).
It is difficult to predict how these factors will apply to different media and artistic genres. At this stage, the safest advice is to ensure you can justify what and how much of the copyright material you are using.
What about moral rights?
The relationship between the new copyright exception for parody or satire and moral rights is yet to be determined. Art+Law readers will be aware of the moral rights amendments to the Copyright Act in 2000.[ix] Most relevantly, these amendments extended the "right of attribution" of authorship and granted creators the 'right of integrity'. Moral rights are subject to the concept of "reasonableness", which includes industry practice and other contextual factors to be taken into account by a court.
Right of integrity
The right of integrity protects authors from 'derogatory' treatments of their work. It is likely that the courts will allow robust lampooning and criticism of copyright works through parody or satire. However, it is possible that authors could invoke moral rights to prevent what they perceive as particularly mutilating or debasing uses of their work. For example, a director may argue that a pornographic parody of a film is a derogatory treatment. The resolution of these issues is as yet unclear.
Right of attribution/against false attribution
Authors have the right to be attributed for their work, and the right to not have their work falsely attributed.
In some circumstances it may be reasonable not to expressly attribute an author. Parody and satire usually depend on the audience recognising the original work being referenced, as in a comedy skit sending up a popular film. If the original work is well known enough to be referenced in this way, it may be reasonable not to expressly attribute its author as the audience already knows its provenance. If the work you are using is less famous, you may need to consider how to avoid confusion with the original, as such confusion could constitute a failure to properly attribute the original work, or even a false attribution of the original author to your parody or satire.
When should I seek permission from the copyright owner?
Remember the saying "where there’s a hit there’s a writ". Despite the existence of the new exception, it might be advisable to seek permission for a parody or satirical use of copyright material if you are planning large scale exploitation of your work; if you are required to give warranties to third parties that you have cleared all rights; or if you are planning to distribute in overseas jurisdictions such as the UK which don’t have similar defences, or online.
An example of an artist who reportedly licences the right to make parodies in exchange for royalties is Weird Al Yankovic, whose parodies of songs such as Madonna’s 'Like a Virgin' have become hits. This is despite the existence of a parody defence under US law.
What other laws still apply?
Parody and satire are in their nature subversive and critical so you may need to seek advice on defamation issues. Other laws which may pose limitations include trade mark protections of popular marks, images and characters; contractual restrictions (such as terms and conditions of websites or APRA licences for public performance); laws concerning sedition, vilification, blasphemy or obscenity; and trade practices and passing off laws.[x]
[ii] Media studies academic Esther Milne argues that parody and satire …“have become a dominant mode of cultural expression in the twenty first century” and that “courts may increasingly be asked by media outlets, producers and consumers to rule on parody and copyright cases”: Esther Milne, “Garrotting the original:’ parody, media, law”, paper presented at the Media, Communications & Cultural Studies Association with AMPE Conference, Coventry University, 10-12 January 2007 (publication forthcoming).
[iii] Suntrust Bank v Houghton Mifflin Co, 268 F 3d 1257 (11th Cir. 2001).
[iv] Blanch v Koons, 2nd Circuit Court of Appeal 26 October 2006. The Koons artwork “Niagara” and the original Andrea Blanch photograph used in the advertisement can be seen here (http://newsgrist.typepad.com/underbelly/2006/11/koons_wins_appe.html) (accessed 16 February 2007).
[v] See for example the comment of Conti J in the “Panel” case, TCN Channel Nine v Network Ten   FCA 108 (20 February 2001) at para 17.
[vii] See further Sally McCausland, “Art and the Olympics” Art+Law December 1999.
[viii] See Simon Etherington, “Fair Crack: Criticism and Copyright” Art+Law 2003.
[ix] For more information on moral rights see Erin Mackay, “Moral Rights comes to Court”, Art + Law December 2006; Australian Copyright Council, Information Sheet on Moral Rights, www.copyright.org.au.
[x] See further the Australian Copyright Council’s Information Sheet on Parody, Satire and Jokes, id.