The campaign materials are compared below:
Parody or Satire
Not Parody or Satire
For these campaign materials,
Burley J further considered whether
the defence of ‘criticism or review’
applied instead, but was not
satisfied as these materials were
critical of AGL as a company, not
of the AGL Logo itself or of any
other copyright work.

The more difficult question was
whether Greenpeace’s campaign
materials were a ‘fair dealing’.

As Burley J asked: “Has Greenpeace
crossed a line such that its dealing
in the AGL Logo is unfair to AGL?”.

His Honour answered, “In my view
it has not…”.

His Honour found Greenpeace’s
dealing to be ‘fair’ based on the
following factors:
› clear attribution of authorship
to Greenpeace;
› some adverse effect but mainly
to spark debate about AGL’s
environmental impact;
› no commercial activity
or competition to AGL;
› the ‘simple’ and ‘homogenous’
nature of the AGL Logo that could
only be reproduced as a whole
and not in parts;
› no realistic prospect of obtaining
the AGL Logo within a reasonable
time at an ordinary commercial
price; and
› no financial gain and no harm
stemming from use of the
AGL Logo itself.

Burley J quickly dismissed AGL’s
trade mark infringement claim on
the basis that Greenpeace’s use of
the Modified AGL Logo was not use
as a trade mark as such use was
for the purpose of identifying AGL
for criticism or parody and not for
identifying the trade origin of goods
and/or services.

The decision highlights the highly
case-by-case nature of this defence
and the lack of clear distinctions
about what makes something a
‘parody’ or ‘satire’ or a ‘fair dealing’.

The question of what is considered
a ‘fair dealing’ must be considered
in the context of the overarching
purpose of promoting freedom of
speech. This question has not been
extensively tested in Australia,
but this case certainly gives more
direction as to how it should be
determined in the context of the
‘parody or satire’ defence.

Inspire September 2021
Greenpeace did not dispute AGL’s
copyright and trade mark rights in
relation to the AGL Logo. However, it
denied both claims on the basis that:
1. Greenpeace had not infringed
AGL’s copyright as its use of
the Modified AGL Logo was
for criticism or review purposes,
or alternatively parody or satirical
purposes; and
2. Greenpeace had not infringed
AGL’s registered trade mark as
its use of the Modified AGL
Logo was not use ‘as a trade
mark’ or, alternatively, was not
used in relation to the same
services covered by the
registered trade mark.

Australia does not have a general
‘fair use’ defence like some other
jurisdictions, but has a range
of specific defences, each of
which require an element of ‘fair
dealing’. The central question that
was considered by Burley J, was
whether Greenpeace had a defence
of ‘parody or satire’ against the
copyright infringement claim. The
overarching purpose of this defence
was to promote freedom of speech
by permitting the use of humour
in the form of parody or satire.

His Honour confirmed that there
are two elements to making out
this defence:
1. must be a ‘fair dealing’ with
the work; and
2. That ‘fair dealing’ must be for
the purpose of ‘parody or satire’.

A dealing is ‘parody or satire’ if “…the
impugned work is used ‘to expose,
denounce or deride vice’, often in the
context of a humorous or ridiculous
juxtaposition” but whether a dealing
is ‘fair’ is less clear and depends
upon “…the nature of the work, the
character of the impugned dealing,
and the particular fair dealing purpose
invoked” which in turn determines
the factors to be considered.

Burley J was satisfied that it was
clear most of Greenpeace’s campaign
materials were for ‘parody or satire’
as the combination of the AGL Logo
with the play on AGL’s initials, and the
non-corporate taglines that mimicked
AGL’s corporate look together with
Greenpeace’s images and the phrase
“Presented by Greenpeace” created
a ‘ridiculous’ and ‘darkly humorous’
juxtaposition. However, Burley J did not find there
to be ‘parody or satire’ for some
campaign materials, particularly a
protest poster, some protest placards,
and some social media materials.

11 Ye Rin Yoo | Trade Marks Attorney
BCom(Finance) LLB GradDipLegalPrac
yerin.yoo@pof.com.au