Brand-jamming can be a really effective (and sometimes controversial) way to use a well-known company's brand value to grab public attention, often to the detriment of the brand. In other words, you use the brand against itself. Think of the McDiabetes spoof on McDonald's to highlight the health concerns around fast food. But as most brands have copyright and trade mark protection, is it legal?
The Federal Court recently provided more guidance on the circumstances when fair dealing for the purpose of parody or satire can be relied on as a defence to a claim for copyright infringement.
Greenpeace ran a digital and outdoor campaign against AGL using catchy slogans such as “Still Australia’s Biggest Polluter” and “Generating Pollution for Generations.” The advertising campaign parodied AGL’s own marketing. It prominently featured the AGL logo, adapted to read “Australia’s Greatest Liability.”
The Coal Giant didn’t like it – and apparently not because they denied it was true – no, they sued Greenpeace Australia Pacific for allegedly infringing their copyright and trade mark rights in their logo and tagline. They asked the Court to award both damages and additional punitive damages against Greenpeace and grant injunctions to prevent further use of the AGL Logo.
Key takeaways from the Greenpeace case
Greenpeace did not dispute AGL’s ownership of copyright or that it had a registered trade mark. However, Greenpeace did deny the infringement of AGL’s copyright on the basis that its use of the modified AGL logo amounted to fair dealing for the purpose of parody or satire within the terms of ss 41 or 41A of the Copyright Act 1968 (Cth). It also denied trade mark infringement on the basis that its use was not “use as a trade mark,” which is required s 120(1) of the Trade Marks Act 1995 (Cth).
The Federal Court agreed with Greenpeace on both points. It provided clarity on when the fair dealing for the purpose of parody or satire defence can be relied on as an answer to copyright infringement. There were two interesting points being:
- You can’t simply rely on the parody or satire defence if you just use a business’ copyright logo to criticise it. The Court emphasised that there must be the use of comic devices, such as irony, humour, or sarcasm to draw viewers’ attention to the object of ridicule or criticism. So, for example, if Greenpeace had simply used AGL’s logo on a pamphlet that criticised their policies and practices, it would probably constitute copyright infringement.
- AGL argued in the case that Greenpeace’s true purpose behind the campaign was to bring about change and that they, therefore, couldn’t rely on a secondary purpose of satire or parody. The Court disagreed and stated that an infringing work may rely on the parody/satire defence even if it was created for another purpose too. Where the line is drawn is where a parody or satire of a brand is really used as a shield where the true purpose is solely to capitalise on the brand’s originality and popularity.
What this means for you
So, if you are a start-up business and have released a line of clothing that parodies well-known brands as a comment on consumer culture, can you rely on the ‘parody’ defence even though it makes your clothing for profit? The courts seem to be supportive of this – that is, you may rely on the fair dealing for the purposes of ‘parody’ defence even though there’s another purpose to your satire or parody. For example, you can make money or gain popularity, provided there is also a genuine purpose to satirise or parody.
It’s not always clear cut, and it’s definitely worth getting legal advice if you plan to satirise or parody someone’s brand or if someone does the same to your brand. Get in touch if you have any questions relating to this topic or copyright infringement generally.
