16 June 2021

Copyright infringement permitted for the purpose of parody or satire: AGL v Greenpeace

In AGL Energy Limited v Greenpeace Australia Pacific Limited [2021] FCA 625 handed down on 8 June 2021, the Federal Court found largely in favour of Greenpeace and held that copyright law does not provide a mechanism for protecting a copyright owner’s reputation.  This decision is seen as a big win for campaign charities looking to run satirical media campaigns without fear of litigation for trade mark and copyright infringement.

In this bulletin we explore and summarise the Federal Court’s findings.

Summary of the background facts

In May 2021, Greenpeace launched a campaign across a variety of media platforms targeting energy giant, AGL Energy Limited arising from Greenpeace’s concern in relation to AGL’s poor environmental practices. 

According to Greenpeace, the purpose of the campaign was to spark public debate about AGL’s activities and to review and criticise AGL’s ‘greenwashing’ materials by pointing out the difference between those materials and AGL’s real environmental impact.  The campaign objective was said to be to persuade AGL to decide to retire its coal-burning power stations by 2030 and become a 100% renewable energy company.

In the campaign Greenpeace used AGL’s logo (which is registered as a trade mark) alongside a tagline that comprised a play on the company’s initials ‘Australia’s Greatest Liability’.  The campaign also used headlines such as “Generating pollution for generations” and “Still Australia’s biggest climate polluter”.

AGL issued urgent proceedings seeking to injunct Greenpeace from using its logo in the campaign.  AGL alleged that use of its logo in the campaign amounted to trade mark and copyright infringement.  It sought damages including an award of additional damages.

On 8 June 2021 the Federal Court delivered judgment in favour of Greenpeace in relation to the trade mark infringement claim and in favour of Greenpeace in relation to all of the copyright infringement claims with the exception of some of the social media posts and some photographs of placards.  The Federal Court declined to award damages.

Copyright Infringement

Greenpeace did not dispute that AGL owns copyright in the AGL logo.  However, it denied infringing copyright on the basis that its use of the AGL logo amounted to fair dealing for the purpose of criticism or review or alternatively parody or satire within the terms of sections 41 and 41A of the Copyright Act 1968 (Cth). 

Section 41A of the Copyright Act 1968 provides:

41A     Fair dealing for purpose of parody or satire

A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire.

The Court held that it is evident that underlying the introduction of s41A of the Copyright Act was an intention to promote a degree of free speech and freedom to comment.  To succeed with this defence Greenpeace was required to establish that there had been ‘fair dealing’ with the AGL logo and that such dealing was for the purpose of parody or satire.

AGL argued that Greenpeace’s conduct was not for a parodic or satirical purpose but was for the purpose of disseminating information and pressuring AGL to announce a new direction for the company and the early closure of its coal-burning power stations.  AGL argued that Greenpeace could have criticised AGL without using its logo.

Finding in favour of Greenpeace, the Court held that Greenpeace’s use of the AGL logo in its online banner advertisements, street posters and parody website fell within the meaning of parody or satire.  The Court held:

“The modified AGL logo is immediately juxtaposed by a play on the company’s initials ‘AGL’ with the parodic or satirical words ‘Australia’s Greatest Liability’, accompanied by words decrying AGL’s environmental practices, such as ‘Still Australia’s Biggest Climate Polluter’ or ‘Generating Pollution for Generations’ or the like…..The ridicule potent in the message is likely to be immediately perceived….AGL is exposed to ridicule by the use of its corporate imagery including by use of the modified AGL logo to convey a message that AGL would not wish to send.  Furthermore, the words “Presented by Greenpeace” are positioned closely proximate to the modified AGL logo….The viewer would understand the message came from Greenpeace”.

The Court also held that Greenpeace’s satirical use of the AGL logo amounted to a ‘fair dealing’, accepting that Greenpeace’s intention was to draw public attention to, and promote public debate about what Greenpeace believes to be AGL’s ‘greenwashing’ behaviour, by depicting AGL’s logo against what Greenpeace perceives to be AGL’s ‘real’ behaviour.  The Court accepted that the ultimate aim of Greenpeace’s media campaign was to promote change at a board level within AGL. 

The Court held, “..copyright protects the owner’s interest in the artistic work, it does not provide a mechanism for protecting a copyright owner’s reputation.  Indeed s41A is a defence that specifically permits an infringement of copyright for the purpose of parody or satire”.

The Court held that some of the social media posts and photographs of placards that did not involve the tagline ‘Australia’s Greatest Liability’ did not contain any element of parody or satire nor was a defence available under s41 of the Copyright Act for that material.  A defence under s41 is only available where the criticism or review is of a work. 

Trade mark infringement

Section 120 of the Trade Marks Act 1995 (Cth) provides that a person infringes a registered trade mark if the person uses as a trade mark a sign that is substantially identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered.

Greenpeace denied trade mark infringement and argued that it had not used the AGL logo as a trade mark at all.

Finding in favour of Greenpeace, the Court held that Greenpeace’s use of the AGL logo did not amount to ‘use as a trade mark’ within the meaning of s120(1).  AGL’s trade mark infringement case therefore fell at the first hurdle.  The Court found that Greenpeace’s use of the AGL logo was to identify that brand and the company that it represents as the subject of criticism and consumers would not perceive Greenpeace to be promoting or associating any goods or services by reference to that mark. 

Conclusion

The Court dismissed AGL’s claim and declined to award damages, with the exception that the Court granted injunctive relief in respect of some of the social media posts and some photographs of placards that did not bear the tagline ‘Australia’s Greatest Liability’ (and were held to fall outside the ‘parody or satire’ defence). Greenpeace is otherwise permitted to continue to use AGL’s logo together with the tagline ‘Australia’s Greatest Liability’ in its campaign.

Author: Jennifer Shaw