Taking it too far: when parody becomes problematic

By Alex Ho, secondee lawyer (McCullough Robertson)

The UK case of Samherji HF v Oddur Fridriksson [2024] EWHC 2892 (Ch) (Samherji) closely parallels the Australian Federal Court case of AGL Energy Ltd v Greenpeace Australia Pacific Ltd [2021] FCA 625 (Greenpeace).  Both cases involved a party using a corporation’s copyright work in a campaign to ridicule the corporation in question. However, the outcome of the UK case upheld copyright laws over the defendant artists’ right to freedom of expression, whilst the Australian case upheld the right of the defendant to use the corporation’s copyright work under fair dealing provisions.   

This article briefly summarises both cases and draws out reasons for the differences in outcome.

The facts

The Samherji case concerns a copyright dispute between Icelandic fishing company, Samherji, and Icelandic artist Oddur Eysteinn Fridriksson. In February 2023, Oddur registered the domain name samherji.co.uk. The fake website used Samherji’s logo and stylised market of ‘SAMHERJI’ on its homepage to mimic a proper Samherji website. The fake website contained a link to a similarly stylised press release, written by Oddur, which stated that Samherji apologises for, and pledges restitution to, the people of Namibia considering the 2019 ‘Fishrot Files’ scandal where Samherji was alleged to have bribed Namibian officials for profitable trawling rights.

In the Greenpeace case, Greenpeace commenced a campaign against AGL Energy which used AGL’s logos in its websites, online banners, posters, social media posts, and placards to bring to attention AGL’s negative environmental conduct. One of the main documents was a mocked up online banner containing the AGL logo followed by the slogans “Australia’s Greatest Liability” and “still Australia’s Biggest Climate Polluter”.

Much of both cases were spent dealing with the issue of whether each party fell under the exception of fair dealing. 

Fair dealing for the purposes of parody or satire

Fair dealing provisions allow for the limited use of copyright material without users having to gain permission or licence from copyright holders. Both defendants sought to rely on the fair dealing provision of parody, satire, caricature or pastiche to explain their use of copyrighted material. Relevantly, the courts had to consider: (a) whether there was a fair dealing, and (b) whether the use of the copyright material constituted parody, satire, caricature, or pastiche. 

In determining whether there was a fair dealing, both cases had to look toward the purpose of the use and whether that use was fair. In the Samherji case, the courts counterbalanced the importance of freedom of expression and the impact of public interest against Oddur’s actions against Samherji. The courts concluded that the purpose behind Oddur’s use of Samherji’s logo and general stylings on the website served the purpose of deceiving into believing the website was Samherji’s official UK website. The courts also found that the press release linked to the website was significantly serious as it put an apology in Samherji’s mouth regarding the Fishrot allegations and committed Samherji to further reconciliation efforts. The courts consider these acts to cross the boundary between fair and unfair dealing. 

Contrastingly, in Greenpeace, the courts held that the purpose behind the Greenpeace’s use of AGL’s logo was to draw attention to Greenpeace’s environmental conduct through parody. The purpose of the use of copyright work must be for the purpose of satire or parody, one mustn’t use copyright material for the notoriety or recognition of the copyright work itself. Greenpeace’s campaign fell within this legitimate purpose.  

In considering whether the impugned conduct was parody, both jurisdictions had different approaches. In the UK, the law provides exception for parody, caricature, and pastiche. In Samherji, the courts provide that parody must evoke an existing work but be noticeably different and express humour or mockery, whilst pastiche can imitate the style of existing work whilst being noticeably different from the original. As many readers will know, in Australia, copyright law provides a fair dealing exception for parody and satire. The court decisions we have suggest that use of an artistic work for the purpose of parody or satire must typically expose, denounce or derive vice through the context of humorous or ridiculous juxtaposition. Parody may involve imitation whereas satire typically doesn’t. 

In Samherji, the courts found that Oddur’s use of Samherji’s logo did not differ much to the original work in any way to derive mockery or humour from its use. The courts found no humour or mockery in Oddur’s use of Samherji’s logo, furthermore, the fact that Samherji’s logo was not altered at all contributes to Oddur’s purpose of deceiving the public in his imitation of Samherji’s corporate identity.

In Greenpeace, however, the Federal Court held that certain elements of Greenpeace’s campaign were clearly satirical and parodic  based on differences between the original and mocked works. The Federal Court found that Greenpeace’s use of AGL’s logo coupled with a corporate design adjacent a clearly non-corporate slogan of “Australia’s Greatest Liability” evoked a darkly humorous use which constituted parody as no reasonable person would believe an AGL advertisement would ridicule itself. Additionally, the adjoining phrase “Presented by Greenpeace” made it clear to a reasonable person that the work created was not related to AGL. The online banners, the posters, and parody website of the campaign – which contained these elements – were deemed parody for these reasons. 

Freedom of expression

Oddur’s claimed that his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) outweighed Samherji’s intellectual property rights. For reasons outlined above, the courts did not accept this defence.

A similar argument would not have been able to be raised in Australia. Whilst Australia has signed the International Covenant on Civil and Political Rights (ICCPR) which grants the right of freedom of opinion and expression under articles 19 and 20, Australia has yet to enact this covenant into domestic law. 

Conclusion

Laws involving artistic works and notions of freedom of expression differ across the world. Artists should be careful of deploying others’ copyright materials in the context of parody and satire. These cases show that the courts generally examine the facts and actions a party takes in deciding whether the use of copyright materials can be considered too egregious to warrant a fair dealing for the purpose of parody, even where the work was done under with an artistic or public interest angle in mind.