September 28, 2021

Volume XI, Number 271

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September 27, 2021

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Australia’s Greatest Liability: Parodic Fair Use or Copyright Infringement?

Whether it be Liberty Oilfield Services launching the critical “Thank You North Face” USA campaign calling out The North Face’s hypocritical and extensive fossil fuel use, or Greenpeace’s Australian campaign criticising AGL for its extensive greenhouse gas emissions, many companies and activists toe the line of trade mark and copyright infringement in the name of parody, satire and criticism. However, in Australia, the fair dealing copyright exception for the purpose of parody or satire had rarely been judicially considered. There have now been two recent cases considering the defence.

After being explored in Universal Music Publishing Pty Ltd v Palmer (No 2) [2021] FCA 434 (Universal Music v Palmer), a case which we analysed on the blog in May, last month the Federal Court of Australia gave significant judicial consideration to the fair dealing defence for parody and satire.

In AGL Energy Ltd v Greenpeace Australia Pacific Ltd [2021] FCA 625 (AGL v Greenpeace), Justice Burley of the Federal Court held that the use by environmental activist group Greenpeace Australia Pacific Ltd (Greenpeace) of energy company AGL Energy Ltd’s (AGL) logo in a satirical public campaign largely did not constitute intellectual property infringement. The public campaign labelled the company “Australia’s Greatest Liability” and “Australia’s Biggest Climate Polluter” due to its significant greenhouse gas emissions. Burley J accepted that the use of the logo, except in a few errant social medial posts and pictures, was satirical, and did not constitute trade mark or copyright infringement. He also refused to award AGL additional damages.

Background
In May 2021, Greenpeace launched a media campaign targeting AGL for its “poor environmental practices”. Greenpeace was concerned that AGL’s coal-burning power stations were harmful to Australia’s ability to reach net zero emissions consistent with the Paris Climate Goal, and that AGL was burnishing its public image by engaging in “greenwashing”. The campaign was released across a variety of media platforms, using a modified AGL logo incorporating the words “Australia’s Greatest Liability” alongside headlines such as “Still Australia’s Biggest Climate Polluter” and “Generating Pollution For Generations”, for example:

The campaign drew attention to Greenpeace’s detailed report “Coal-faced: Exposing AGL as Australia’s biggest climate polluter”, which outlines AGL’s corporate activities and environmental impacts, and accuses the company of falsely presenting itself as an environmentally responsible energy provider.

Within days of the launch of the campaign, AGL initiated proceedings against Greenpeace seeking urgent declarations of infringement, injunctions to restrain Greenpeace’s use of the modified AGL logo, and damages including additional damages.

Copyright infringement

AGL claimed that use of the AGL logo, which it contested was an “artistic work”, infringed AGL’s copyright. Greenpeace defended its conduct based on the fair dealing defences under s 41 and s 41A of the Copyright Act 1968 (Cth) (Copyright Act).

(a) Fair dealing for the purpose of parody or satire

Section 41A of the Copyright Act dictates that fair dealing for the purpose of parody or satire is an exception to copyright infringement.

Burley J considered the section in greater detail, noting the parliamentary intention of the section was to promote freedom of speech and freedom to comment through the use of humour in the form of parody or satire. He concluded s 41A was an affirmative defence which contained two elements: that there be a “fair dealing” with the artistic work; and that such dealing be for the purpose of parody or satire.

(i) Purpose of parody or satire
Burley J held that the purpose and character of the dealing by Greenpeace was parodic or satirical, noting the following:

  • use for the purpose of parody or satire includes where “the impugned work is used “to expose, denounce or deride vice”, often in the context of a humorous or ridiculous juxtaposition”.

  • “purpose” must be considered objectively, from the likely perception of the person who will be seeing the impugned work (for example, a member of the general public exposed to the materials used in Greenpeace’s campaign, likely to be familiar with both parties).

  • fairness should be judged by the objective standard of whether a fair-minded and honest person would have dealt with the copyright work in the manner in which the defendant did, for the relevant purposes.

  • parody, by its nature, is likely to involve holding up a creator or performer to scorn or ridicule, and that using material for a general satirical point should not be “unfair in its effects for the copyright owner”.

  • a work can be created for more than one purpose, and that this will not impact the applicability of a fair dealing defence.

Accordingly, Burley J considered that although the ultimate purpose of Greenpeace’s campaign was to bring about a change in AGL’s environmental conduct, the satirical message in the impugned materials had only the effect of drawing viewers into the debate about AGL’s environmental impact. He also concluded that the majority of Greenpeace’s use fell within the meaning of “parody or satire” due to the “darkly humorous” ridicule potent in the message which readers would likely immediately perceive as coming from Greenpeace.

It should be noted that a number of the impugned uses, which were less obviously satirical due to their more factual and communicative nature, were held not to constitute parody or satire.

(ii) Fair dealing
Burley J further held that Greenpeace’s satirical uses of the modified AGL logo amounted to fair dealing, due to (amongst other various legal technical points) the clear attribution of authorship by Greenpeace; Greenpeace’s existence as a campaigning, non-commercial organisation which is not in competition with AGL; and the fact that any reputational damage would have come from the campaign itself rather than use of the AGL logo.

(b) Fair dealing for the purpose of criticism or review

Burley J considered an alternative exception in section 41 of the Copyright Act, a fair dealing exception to copyright infringement for the purpose of criticism or review, in relation to the Greenpeace materials that did not meet the exception for the purpose of parody or satire: namely some of the social media materials, a protest poster, and some of the protest placards.

He concluded that the relevant materials did not criticise or review the copyright work itself. The absence of the use of the tagline “Australia’s Greatest Liability”, and the fact that the purpose of these works were sufficiently clear meant that the images did not rise above the level of protest statements that are critical of AGL as a company, and would not be understood to represent criticism of review, whether of the AGL logo or any other work.

Trade mark infringement

AGL has an Australian registered trade mark no. 1843098:

For trade mark infringement to be successful, the alleged infringer must use as a trade mark a sign that is substantially identical with, or deceptively similar to, a registered trade mark in relation to goods or services in respect of which the trade mark is registered.

AGL submitted that Greenpeace infringed the AGL Trade Mark by using in its campaign a substantially identical, albeit modified, version of the AGL logo, within education and scientific services covered by the registered trade mark.

Greenpeace submitted to the court that the use of the modified AGL logo was not trade mark use; the modified AGL logo was not substantially identical with the AGL logo trade mark; and Greenpeace is a charity and its use of the modified AGL logo did not amount to use in the course of trade.

Burley J dismissed the claim for trade mark infringement, concluding that AGL had not established its case for trade mark infringement as:

  • consumers would perceive Greenpeace’s use of the modified AGL logo as critical, identifying the brand and the company it represents, rather than to promote or associate any goods or services; and

  • no evidence was given that the use of the modified AGL logo was in relation to the AGL Trade Mark’s claimed services. For example, Burley J stated that “not every communication of information will amount to ‘education'”, with the use of the logo lacking “systemic imparting of instruction” and other qualities.

Key takeaways

AGL v Greenpeace sets an important precedent to clarify, to an extent, how advocacy organisations can use satirical or parodic materials in relation to a specific brand or company. However, the satire must be in relation to a copyright work itself (for example, a logo) and not generally in relation to the company or brand. The use of a company logo in protest or satirical materials can be used under copyright and trade mark law where the use is “fair dealing” for the genuine purpose of parody or satire.

However, by using another company’s logo in advertising, campaigning or explanatory material, a user must ensure the use is in relation to a fair use exception, or risk action taken against them. AGL v Greenpeace demonstrates that not all uses intended to criticise or be satirical, such as protest placards, will be protected under the fair use exceptions. It appears that, to an extent, each case will be considered on its own merits.

Copyright 2021 K & L GatesNational Law Review, Volume XI, Number 207
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About this Author

Chris Round, Partner, KLGates
Partner

Mr. Round is an intellectual property lawyer with extensive experience in the registration of intellectual property rights and associated litigation. He represents clients in copyright, trade mark, patent, designs and associated trade practices litigation in all Australian Courts.

Mr. Round prosecutes trade mark applications and oppositions before IP Australia and the Intellectual Property Office of New Zealand (IPONZ) and appears at Australian trade mark hearings

+61-3-9640-4364
Talia Le Couteur Scott Intellectual Property Attorney K&L Gates Melbourne, Victoria
Partner

Talia Le Couteur Scott is a lawyer in the Melbourne intellectual property team and focuses on IP procurement and portfolio management. 

Talia began with the firm as part of the graduate program and worked in the labour, employment, and workplace safety; financial services (asset management and investment funds); and IP teams.

61 3-9640-2074
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