Intellectual Property And Parody – What Does Fair Use Say?

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Parody and satire are considered to be a “fair dealing” exception to copyright law, which means that the relationship between parody and copyright law has changed.

Creative expression is protected and encouraged by copyright law, but the inherent risk of this type of law is that it may stifle creativity (unless some exceptions are included). Parody and satire are two such exceptions to copyright infringement but are still in ambiguously grey areas of the law.

Specifically, copyright protects the original expression of an idea and is automatically applied in Australia. The fact that it protects the expression of an idea, rather than the idea itself means that copyright protections arise for:

  • the expression of artistic, literary, dramatic or musical works; and
  • works like films, broadcasts, sound recordings and published editions.

Copyright, essentially, give the author exclusive rights to use and commercialise the work.

Fortunately, to promote artistic creativity and freedom, there are some exceptions to copyright infringement. These are collectively known as ‘fair dealing’ exceptions. These include circumstances such as:

  • research or study;
  • criticism or review;
  • reporting news;
  • a legal practitioner giving legal advice; and
  • parody and satire.

To be exempt from copyright infringement, the way in which you deal with the work must fall within one of the exceptions listed, which must then be considered to be ‘fair dealing’. This can vary depending on circumstances for each particular case, but fairness will usually consider:

  • how much of the work you have used;
  • what you have changed or added; and
  • whether you have used the new work for a commercial purpose.

These exceptions do not apply to all works of copyright. Instead, they are limited to:

  • literary, dramatic, musical or artistic works;
  • adaptations of literary, dramatic or musical works; and
  • audio-visual works, such as sound recordings, films and broadcasts.