Parody, Satire, Honour and Reputation: the Interplay Between Economic

Parody, satire, honour and reputation: The interplay between economic and moral rights Maree Sainsbury* This article examines the interplay between the moral rights provisions, introduced into Australian copyright law in 2000, and the more recently introduced defence of fair dealing for the purposes of parody or satire. The legislation gives effect to a theoretical and legislative dichotomy between moral rights, and the economic rights. However, a potential conflict arises between the author’s moral right to object to derogatory treatment of his or her work and the defence of fair dealing for parody or satire, which will often involve criticism or attack which may be seen as derogatory. The application of both aspects of the law in different copyright contexts is considered, namely potential disputes with respect to literary and dramatic works, artistic works, musical works and cinematograph films. INTRODUCTION On 11 December 2006, parts of the Copyright Amendment Act 2006 (Cth)1 came into effect, introducing into Australian law a new defence of fair dealing for the purposes of parody or satire.2 This created a situation unique in common law jurisdictions, combining the defence of fair dealing for the purposes of parody or satire with a moral rights regime. While countries such as Canada, New Zealand and the United Kingdom provide moral rights for authors, they do not provide a specific defence of fair dealing for parody or satire. The United States provides a broad fair use defence, which has been held to include use for the purposes of parody, however, the moral rights provided for authors are much more limited in scope. At first glance, such a combination seems problematic. Indeed, it has been argued in a US context that “the fair-use doctrine is inherently incompatible with federal moral rights”.3 The conflict arises predominantly between the author’s moral right of integrity and the right of the user to use a work to which moral rights attach for the purposes of parody or satire. The right of integrity gives the author the right to object to derogatory treatment, that is, treatment which is prejudicial to his or her honour or reputation. The defence of parody or satire allows a user to incorporate and transform existing copyright material often to attack or criticise that material or its author. The use of the author’s own work to attack or criticise the author or his or her work may be argued to be a use which is prejudicial to that author’s honour or reputation. Even where the parody or satire does not target the copyright work itself,4 the use of the work to comment on or criticise something external to the work may still be viewed by the author as derogatory treatment, or use of his or her work in a way that was not intended. While the proposed defence of fair dealing for the purposes of parody or satire was being discussed, several organisations noted the seeming inconsistency between the use of a work for the purposes of parody or satire and the author’s moral rights. For example, the National Association for the Visual Arts stated that it “would not want to see a situation in which the relatively recently introduced Moral Rights provisions are undermined by an extension to the fair dealings exceptions by

* Senior Lecturer in Law, University of Canberra. This article was produced while a Visiting Fellow at the Australian National University. The author acknowledges the helpful comments of Dr Matthew Rimmer. The opinions are those of the author. 1 No 158 of 2006. 2 Now found in Copyright Act 1968 (Cth), s 41A (works), s 103AA (audio visual items). 3 Ciolino D, “Rethinking the Compatibility of Moral Rights and Fair Use” (1997) 54 Washington and Lee Law Review 33 at 33. 4 The meaning of parody and satire, and their legal interpretation, is discussed below. It will be seen that a literary interpretation of parody would allow for the target to be something external to the incorporated copyright material. The legal interpretation in the US is narrower than this.

(2007) 18 AIPJ 149 149 ©

Electronic copy available at: http://ssrn.com/abstract=1980392 Sainsbury including exceptions for subjective notions such as ‘parody’”.5 The Arts Law Centre of Australia also commented that any fair dealing exception for the purposes of parody and satire must be subject to artists’ moral rights. They wanted the defence expressly subject to the moral rights provisions as “[u]nless expressly provided in the legislation, the introduction of s 200AB(5) may sanction an infringement of the right of integrity”.6 The Law Council of Australia took an alternative view, submitting that a fair dealing for the purposes of parody be seen as presumptively reasonable to provide a defence to the infringement of moral rights.7 The relationship between moral rights and parody was also considered when the moral rights legislation was proposed. The Discussion Paper outlining the proposed moral rights legislation commented that treatment of a film or a work may not be derogatory where it is used for parody or burlesque.8 The comment was made that use for the purposes of parody or burlesque would be unlikely to amount to an infringement of the right of integrity as they are valued practices in society, part of free speech and criticism and because the intention is to provide humour in an effective and creative way. It was stated that “the moral right of integrity is not intended to stifle satire, spoof or the lampooning of a work or film”, but “it is acknowledged that there may be borderline cases”.9 These concerns illustrate the potential tension between the economic rights provided for in the Copyright Act 1968 (Cth), the defences to their infringement, and moral rights. It raises the issue of what, if anything, should be done about it. If there is a fundamental incompatibility, then it may raise arguments that the defence and moral rights should not be contained in the same piece of legislation, or even in the same legal system. If they are to co-exist then there should be a clear statement of precedence in a situation of conflict. This article rejects those arguments. Many factual situations which give rise to arguments based on parody or satire will also raise moral rights considerations. However, the two issues should be seen as separate and distinct and applied that way to each set of facts. Admittedly there is some tension between parody, satire, and moral rights, but it is best dealt with by a full consideration of both sets of laws. The defence of fair dealing and the moral rights provisions both allow for interpretation by the courts and a finding based on the facts of the particular case. This will provide scope for minimising tension between the two sets of provisions, particularly as some legal precedent develops. There will be an overlap in the evidence considered on both issues, which is where some legislative presumptions may be advantageous.10

MORAL RIGHTS AND ECONOMIC RIGHTS:A DIFFERENT PRACTICAL AND THEORETICAL BASIS Before the specifics of the fair dealing and moral rights provisions are discussed it is useful to analyse the structure of the inclusion of these provisions in the Copyright Act and the theoretical background to them. The Copyright Act is drafted in a way to reflect the divergence of moral rights and economic rights. This divergence derives from the theoretical basis of, and the justifications for, these sets of rights.

5 National Association for the Visual Arts Submission, Fair Use and Other Copyright Exceptions at 4, http://www.icdr.gov.au/ www/agd/rwpattach.nsf/VAP/ (AEEBC4E05675B564D2489B776B8B056A)~p124+National+association+for+the+visual+arts.PDF/$ﬁle/ p124+National+association+for+the+visual+arts.PDF (viewed 24 August 2007). 6 Arts Law Centre, Submission to the Senate Legal and Constitutional Affairs Committee on Copyright Amendment Bill 2006, October 2006, http://www.aph.gov.au/Senate/comiittee/legcon_ctte/copyright06/submissions/sub36.pdf, p 6; see also p 4. It is not clear how the existence of a defence to copyright infringement could sanction an infringement of a separate right (the right of integrity). 7 Law Council of Australia, Business Law Section, Intellectual Property Committee, Submission to the Attorney General’s Department Issues Paper, Fair Use and Other Copyright Exceptions: An Examination of Fair Use, Fair Dealing and Other Exceptions in the Digital Age, http://www.lawcouncil.asn.au/get/submissions/2414115082.pdf (viewed 27August 2007). 8 Discussion Paper, Proposed Moral Rights Legislation for Copyright Creators, Commonwealth of Australia (ACT, 1994) pp 46, 48, 49. 9 Discussion Paper, n 8, p49. 10 Discussed below, under the heading: Analysis of the Australian law.

Electronic copy available at: http://ssrn.com/abstract=1980392 Parody, satire, honour and reputation: The interplay between economic and moral rights In common law jurisdictions, the prevailing rationale for copyright protection is economic. It protects the copyright owner’s property interests in the work, enabling him or her to exploit it for profit. Copyright protection also serves the important social purpose of encouraging innovation – a person is unlikely to make an investment in an innovative work without the assurance of a right protected by law. It is this economic justification for the protection of copyright which forms the basis of the principal distinction between copyright and moral rights. Whereas copyright exists to protect the author’s economic interests, moral rights exist to protect the author’s personality interests as expressed in his or her work. Because moral rights stem from the personal connection between the author and the work, moral rights cannot be assigned, and so are retained by the author even after the copyright has been assigned. Whereas economic rights are viewed as property rights, moral rights are not a form of property, but in the category of personality rights. The development of moral rights theory can be linked to the romantic conception of authorship which developed in the 18th century.11 This conception emphasised an author’s originality and creative genius and the bond existing between an author and his or her work;12 ideas which are central to the moral rights doctrine. The basis for moral rights is that the work is an expression of the author’s personality; there is a close personal link between the author and the work as a result of the personal effort expended in its creation. This act of creation is said to make the work a unique form of property so as to be deserving of special protection. Advocates of moral rights contend that authors should be entitled to exercise control in respect of, and over, their works in ways that persons who produce other forms of personal property cannot. This distinction is enshrined in a theoretical debate which emerged in the 19th century, following the emergence of moral rights theory. A debate arose in Germany between Otto Friedrich von Gierke and Joseph Kohler as to the composition of a moral right,13 a division in views as to the nature of moral rights which still exists today. The monist view,14 as propounded by von Gierke, locates moral rights as a part of the economic rights, being an incident of copyright. An author gains a pecuniary advantage from the recognition of his or her name or recognition of the quality of his or her works. Safeguarding integrity and paternity is therefore also to secure commercial value.15 Kohler16 took the dualist viewpoint, arguing that an author’s moral rights are distinct from his or her exploitative or economic rights. The dualist views an author’s legal rights as comprised of two elements: an economic element which is covered by the law of copyright, and a personal and separate element. The work is recognised as an expression of the author’s personality but its economic value to the author was also recognised, albeit subordinately to the personal aspect.17 Whereas the monist view prevails in Germany,18 the dualist view prevailed in France.19 The dualist view of moral rights and copyright is also reflected in the Australian legislation in a number of ways. Most significantly, the ownership of moral rights and the economic rights may vest in different

11 Aide C, “A More Comprehensive Soul: Romantic Conceptions of Authorship and the Common Law Doctrine of Moral Right” (1990) 48 Univeristy of Toronto Faculty of Law Review 211. 12 Aide, n 11 at 212. 13 Aide, n 11 at 222. 14 See, eg, von Gierke OF, in Aide, n 11 at 223. 15 Richard H and Carriere L (eds), Canadian Copyright Act Annotated (Carswell Thomson Professional Publishing, Toronto, 1993) at 14.1-15. 16 Aide, n 11 at 223. 17 Damich E J, “The Right of Personality: A Common Law Basis for the Protection of the Moral Rights of Authors” in (1988) 23 Georgia Law Review 28. 18 Aide, n 11 at 223. 19 The dualist view is implicit in Art 1(2) of the French Intellectual Property Code, which provides that the rights of authors include attributes of the intellectual and moral order as well as attributes of the pecuniary order (emphasis added). Damich, n 17 at fn 148.

(2007) 18 AIPJ 149 151 © Sainsbury people.20 Secondly, the duration of moral rights differs in some ways to the duration of copyright.21 Thirdly, although contained in the same piece of legislation, there are separate provisions providing remedies for the infringement of economic and moral rights.22 The remedies for copyright infringement are focused on economic compensation and include an injunction and either damages or an account of proﬁts.23 The remedies available for moral rights infringement on the other hand, are a lot broader in their focus. While damages are an option, the court may also order a public apology or order that the false attribution or derogatory treatment be removed.24 The court may also take into account the effect of the breach on the author’s honour or reputation and anything done by the defendant to mitigate the effects.25 In deciding whether or not to grant an injunction the court must consider whether the parties have attempted to negotiate a settlement and may adjourn the hearing for this purpose.26 There is no such provision in relation to infringement of the economic rights. A similar structure in the Canadian legislation was considered by the Canadian Supreme Court in Théberge v Galerie d’Art du Petit Champlain inc [2002] 2 SCR 336; [2002] SCC 34. The court pointed to the fact that the two sets of rights are structured in separate and distinct sections in the Act as indicating that a clear distinction and separation was intended and emphasising the differences between moral rights and economic rights. A consequence of this was that economic rights should not be read so broadly that they cover the same ground as moral rights thus rendering inoperative the limits Parliament has imposed on moral rights. The court further noted that generally speaking, Canadian copyright law had been more concerned with economic than moral rights. The consequence of the separation of moral rights and economic rights is that the law as currently drafted should be read so that the economic rights, together with the defences to their infringement, and moral rights and their limitations are independent of each other and serve different purposes. This dualist view helps in coming to terms with the existence of both moral rights and the defence of parody or satire. While they initially may seem inconsistent, there is no need to attempt to reconcile them. Economic rights, the defences to their infringement and moral rights are separate and distinct and raise issues which must be determined separately. This raises the question of how this is going to be achieved in practice. Despite the theoretical and legislative separation, the practical application of these rights will give rise to considerable overlap. This raises the question of whether the legislation could have been drafted to avoid this inefficiency; an issue which is also considered below. PARODY AND SATIRE OVERVIEW The Copyright Amendment Act introduced the new defence of fair dealing for the purpose of parody or satire into the Copyright Act. It inserted a new s 41A and s 103AA. Section 41A provides:

20 Copyright ownership is dealt with in Copyright Act 1968 (Cth), ss 35 (works), 97 (sound recordings), 98 (cinematograph ﬁlms), 99 (television and sound broadcasts) and 100 (published editions); moral rights ownership is dealt with in ss 193 (attribution), 195AC (false attribution), 195AI (integrity). The main difference is that moral rights always vest in the author whereas copyright may vest in an employer or commissioner of a copyright work. The difference in ownership may also arise as copyright is transferable (s 96), whereas moral rights are unassignable; further, only individuals attract moral rights (s 190), whereas a corporation can own copyright. 21 Copyright Act 1968(Cth), s 195AM, provides that the right of integrity in cinematograph ﬁlms expire on the death of the author. 22 Copyright Act 1968(Cth), ss 195AZA (moral rights), 115 – 116AA (economic rights). 23 Copyright Act 1968(Cth), s 115(2); there are other property-focused remedies in the form of actions for conversion or detention (in s 116) and the option for additional damages in special cases (in s 115(4)) where the considerations may overlap with those in determining a moral rights remedy (see, eg Milpurrurru v Indofurn (1994) 54 FCR 240; 30 IPR 209 where additional damages were awarded for cultural harm to the plaintiff arising from the unauthorised use of traditional Aboriginal designs). 24 Copyright Act 1968(Cth), s 195AZA(1)(d) – (e). 25 Copyright Act 1968(Cth), s 195AZA(2). 26 Copyright Act 1968(Cth), s 195AZA(5).

© 152 (2007) 18 AIPJ 149 Parody, satire, honour and reputation: The interplay between economic and moral rights 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. Section 103AA is in identical terms save for the reference to an audio-visual item instead of a work. Using a literary analysis, the key indicators of parody are its imitation of an existing work to which changes are made with the aim or commenting on or criticising.27 The parodist is either imitating the chosen text to mock it in contempt or imitating it in admiration, although perhaps with a desire to modernise and change it.28 Parody need not ridicule the work of its target, but does transform it in some way.29 In literary analysis, a satire is an attack.30 There is aggression by verbal, visual, aural or other aesthetic means. The aggression may be direct or indirect, ranging from name calling to use of allegory.31 However, the aggression is expressed with a spirit of play, uniting two otherwise incompatible elements.32 The aim of satire is to provide amusement at the same time as making a judgment.33 The distinction between parody and satire is in parody’s requirement for imitation. Parody is a vehicle of criticism delivered by imitating another text. It must create allusions to that other text in order to work. Satire is not restricted to the imitation, distortion or quotation of other texts – that is, it is a broader concept. The element of judgment, attack or criticism can be achieved in other ways. However, it is common for literary satire to be transmitted through the medium of parody.34 The two concepts have also been the subject of some legal consideration. In Campbell v Acuff-Rose Music, Inc 510 US 569 (1994), the US Supreme Court stated that while a parody targets and mimics the original work to make its point, a satire uses the work to criticise something else. In TCN Channel Nine Pty Ltd v Network Ten Ltd (2001) 108 FCR 235; 50 IPR 335. Conti J referred to the dictionary deﬁnition of parody as requiring imitation, whereas satire was described as a form or ironic, sarcastic, scornful, derisive or ridiculing criticism of vice, folly or abuses, but not by way of imitation or take off. A fair dealing? For the purposes of Australian law, the dealing must not only be for the purposes of parody or satire, it must also be a fair one to constitute a defence to copyright infringement. There is no further guidance in the Copyright Act as to when a dealing for the purposes of parody or satire will be a fair one, however there are a number of factors which are likely to inﬂuence the court in making this determination.

27 Rose M, Parody//Meta-Fiction: An Analysis of Parody as a Critical Mirror to the Writing and Reception of Fiction (Croom Helm, London, 1979). 28 Rose, n 27, p 28. 29 Oxford English Dictionary defines the noun “parody” as, “A literary composition modeled on and imitating another work, esp a composition in which the characteristic style and themes of a particular author or genre are satirised by being applied to inappropriate or unlikely subjects, or are otherwise exaggerated for comic effect. In later use extended to similar imitations in other artistic fields, as music, painting, film, etc”. 30 Oxford English Dictionary defines the noun “satire” is defined as, “a poem, or in modern use sometimes a prose composition, in which prevailing vices or follies are held up to ridicule. Sometimes, less correctly, applies to a composition in verse or prose intended to ridicule a particular person or class of persons, a lampoon” or “the species of literature constituted by satires; satirical composition”. 31 Test G, Satire: Spirit and Art (University of South Florida Press, Florida, 1991) p 16, Test describes satire as acting out of emotions that are frowned upon, such as anger, malice and hatred and tending to promote more of these emotions. This raises the question as to whether it is in the public interest that satire be encouraged via a defence such as fair use. The counter argument is that it provides one way of channeling these emotions, which is less harmful than many alternatives. 32 Test, n 31, p 19. 33 Test, n 31, p 29. 34 Rose, n 27, p 47.

(2007) 18 AIPJ 149 153 © Sainsbury The extent of the transformation in creating the parody or satire will be relevant. That is, how much original material is included when weighed up against the copyright material taken.35 Another relevant factor will be the type of the dealing – a non-commercial, private use will be more likely to be seen as fair than a commercial, public use.36 A signiﬁcant consideration will be the effect of the dealing on the market for the original work. The US Supreme Court has described the impact on the market for the original work as “undoubtedly the single most important element of fair use”.37 The courts are careful to distinguish between impact on market as a result of usurpation of that market, and any impact which may arise from the criticism or comment that parody and satire contains.38

MORAL RIGHTS OVERVIEW Moral rights are granted in respect of original literary, dramatic, musical and artistic works and for cinematograph films.39 In the context of parody and satire, it will be the moral right of integrity that is most significant, although issues of attribution will also arise. Integrity The right of integrity is the right not to have the work subjected to derogatory treatment.40 “Derogatory treatment” is defined as: (a) Doing anything that results in a material distortion, mutilation or alteration to the work which is prejudicial to the author’s honour or reputation, or (b) Doing anything else in relation to the work that is prejudicial to the author’s honour or reputation. According to the Explanatory Memorandum, this latter part of the definition is intended to address those instances where a work is used in an inappropriate context and prejudices the author’s honour or reputation.41 The derogatory treatment need only be in respect of a substantial part of the work for infringement to occur.42 Prejudice to honour or reputation The words “prejudice to honour or reputation” appear in the Berne Convention. They represented a compromise between civil law countries, where the rights originated, and common law countries where they were, in general, a foreign concept. It is this aspect of compromise that will be one important consideration in applying the moral rights law in the context of parody or satire. Under the traditional right of integrity, as reflected in the French law, it is presumed that any act which modifies the author’s work is an injury to the author’s personality. Thus, it is unnecessary to show prejudice to the author’s honour or reputation, the French legislation providing that “the author enjoys the right to have … the integrity of his work respected”.43

35 See De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99; 18 IPR 292; Disney Productions v Air Pirates (1978) 581 F 2d 751 (9 Cir). 36 Hustler Magazine Inc v Moral Majority Inc 606 F Supp 1526 (CD Cal 1985). 37 Harper & Row, Publishers Inc v National Enterprises 471 US 539 at 566 (1985); note however that later decisions have downplayed its signiﬁcance and in Campbell v Acuff Rose Music, Inc 510 US 569 at 578 (1994) it was stated that no one factor is determinative – the four statutory factors must not be treated in isolation. 38 See, eg, the comments of the US Supreme Court in Campbell v Acuff Rose Music, Inc 510 US 569 (1994) that “the Court acknowledges that it is legitimate for parody to suppress demand for the original by its critical effect”. It is its substitutive effect that is relevant. 39 In order for moral rights to exist, the author must also be a natural person. Where the work is a cinematograph ﬁlm, the owner is the director, producer and screenwriter (Copyright Act 1968 (Cth), s 189). 40 Copyright Act 1968(Cth), s 195AI(2). 41 Copyright Amendment (Moral Rights) Bill 1999, Explanatory Memorandum, para 44. Where the work is an artistic work, derogatory treatment also includes an exhibition in public that is prejudicial to the honour or reputation of the author because of the manner or place in which the exhibition occurs. 42 Copyright Act 1968(Cth), s 195AZH. 43 Loi relative au Code de la propriete intellectuelle (partie legislative), Loi No 95-597 of 1 July 1992, J O 3 July 1992 at 8801, Art L121-1. The Polish law also refers only to the protection of the inviolability of the content and form of the work (Copyright

© 154 (2007) 18 AIPJ 149 Parody, satire, honour and reputation: The interplay between economic and moral rights It has been stated that, the countries of Europe contextualized and formulated the right of integrity in various ways. Some emphasized the treatment of the work more than the prejudice to the author. Some focused on the bond between author and work, while others focused on the author’s standing in the community. In others misrepresentation of the author seems to lie at the heart of the integrity issue. Some used the notion of honour in their jurisprudence, though none used it in their legislation.44 The words “honour and reputation” are disjunctive, therefore it should be sufficient to show prejudice to either honour or reputation. While the word “honour” connotes a subjective element in its ordinary meaning,45 it seems that the subjective element was never intended to prevail, and indeed that is the approach that has been taken by the courts in common law jurisdictions where it has been moderated with an objective aspect. It has been stated that: it is clear in Berne Convention debates that, no matter what formulation was adopted, there was no intention to allow authorial hypersensitivity to dictate the outcome of a case. The interest to be protected had to be a legal interest rather than a mere personal sentiment.46 Therefore, the subjective element must be balanced with an objective one. This is reflected in the case law in common law jurisdictions. In the Canadian case of Snow v Eaton Shopping Centre (1982) 70 CPR 105, O’Brien J stated (at 106): the words “prejudicial to his honour or reputation” … involve a certain subjective element or judgment on the part of the author so long as it is reasonably arrived at. This test was considered in the English case of Tidy v Trustees of the Natural History Museum [1996] EIPR-D 86; (1995) 39 IPR 501, Rattee J stating (at 504): Even if I accept that statement of principle, the fact remains that before accepting the plaintiff’s view that the reproduction in the book complained of is prejudicial to his honour or reputation, I have to be satisfied that that view is one which is reasonably held, which inevitably involves the application of an objective test of reasonableness. In Carter v Helmsley-Spear, Inc 71 F 3d 77 (2nd Cir 1995), the US Court of Appeals for the Second Circuit affirmed the District Court’s determination of whether or not the alteration and destruction of an artwork was prejudicial to the honour and reputation of the plaintiff. The District Court had looked at the natural meaning of the words, interpreting “prejudice” to mean “injury or damage due to some judgment of another”. “Honour”, it was stated, was commonly understood to mean “good name or public esteem”. “Reputation” was “the condition of being regarded as worthy or meritorious”. The test to be applied was whether the alteration would cause injury or damage to the plaintiff’s good name, public esteem or reputation in the artistic community. The court characterised its task as being to “focus on the artistic or professional honor or reputation of the individual as embodied in the work that is protected”.47 As most parody and satire is presented with a humorous element, it is relevant to consider what impact this factor will have on an assessment of prejudice to honour or reputation. In a defamation context, it has been repeatedly stated that reputation can still be damaged by humour or by critical opinion.48 In Australian Broadcasting Corporation v Hanson [1998] QCA 306 (28 September 1998) the Queensland Court of Appeal upheld the grant of an injunction to prevent the broadcast of the song and Neighbouring Rights Act 1994, s 16(3)). Further, the law in the Netherlands (Law Concerning the New Regulation of Copyright Act, 13 September 1912, as amended in 1985) gives the author the right to object to any modification, provided that it is not unreasonable to object. This is in addition to the right to object to any distortion, mutilation or other modification which is prejudicial to the honour or reputation of the author or to his value as such. 44 Adeney E, The Moral Rights of Authors and Performers: An International and Comparative Analysis (OUP, Oxford, 2006) p 117. 45 Adeney E, “The Moral Right of Integrity: the Past and Future of Honour” (2005) 2 Intellectual Property Quarterly 111 at 126. 46 Adeney, n 44, p 126. 47 Carter v Helmsley-Spear, Inc 861 F Supp 303 at [27]-[29] (SDNY 1994). 48 See, eg Kenyon A, “Defamation, Artistic Criticism and Fair Comment” (1996) 18 Syd LR 193.

(2007) 18 AIPJ 149 155 © Sainsbury “Back Door Man” by Pauline Pantsdown.49 A lot of the lyrics were digitally sampled from statements of Pauline Hanson. The song was intended to parody her political opinions. The respondent argued that the “song was satirical and was not to be taken seriously” (at 3). The trial judge noted that “I can’t imagine that one can avoid liability for injury to reputation to the extent that it is injured by simply prefacing it by saying, ‘Well, this is satirical, don’t take this seriously,’ and then playing it over and over and over again” (at 5). It was found that the ordinary sensible listener, not avid for scandal, would conclude that at least one or more of these imputations arose and they are plainly defamatory for exposing the respondent to ridicule and contempt. Other authorities are consistent on the point that a humorous tone is not decisive; that “if a man in jest conveys a serious imputation he jests in peril”.50 For example, in Darbyshir v Daily Examiner Pty Ltd (unreported, Supreme Court, NSW, Levine J, 29 August 1997) the defendant argued that imputations in an advertisement (an advertisement portraying a lawyer as a vulture, predatory and unprincipled) could not be defamatory as the ordinary reasonable reader of the advertisement in question would take the view it was a joke and that the only reasonable inference to be drawn was on this basis. The court stated that this argument could only succeed if the jokes were benign and not capable of imputing some disparagement of the plaintiff. Here, even if understood as a joke, it was capable of the consequence of the plaintiff being held up to “hatred, ridicule and contempt”.51 In conclusion, despite the comments in the Discussion Paper to the effect that use of a work for parody or burlesque may not be derogatory, there is a very real likelihood that much parody or satire could be seen as prejudicial to the author’s honour or reputation. This is particularly so in the context of parody, which is generally directed at criticising either the author’s work or the author, which in turn has an impact on the author’s honour or reputation. In the case of satire, the use of the work in an aggressive or critical context may be seen as prejudicial to the author. The purpose for which the work it used will be irrelevant in this context and humorous prejudice is still prejudice. It is submitted that the best way for it to be seen as legitimate is through use of the reasonableness defence to infringement. The reasonableness defence It is a defence to infringement of the rights of integrity and attribution if the defendant can demonstrate that the derogatory treatment or other treatment was reasonable, or if it was reasonable not to identify the author.52 These provisions will be very important in a parody or satire context, as the defendant may argue that treatment which may otherwise be seen as derogatory was reasonable in these circumstances. The Copyright Act contains a list of factors for the court to consider in assessing reasonableness. They include: • the nature of the work; • the purpose for which the work is used; • the manner in which the work is used; • the context in which the work is used; • any relevant industry practice or voluntary codes of practice; • whether the work was made in the course of employment; and • the view of any other authors of the work.53 Where the work is used for the purpose of parody or satire, the defendant may argue reasonableness on the basis of the transformative use of the work. There is much authority to support the proposition that parody and satire involve creations which beneﬁt society, which weigh in favour of a ﬁnding of reasonableness. Parody and satire provide a source of entertainment and

49 The song contained lyrics such as: “I’m a backdoor man. I’m homosexual”, “I’m a backdoor man for the Klu [sic] Klux Klan”, and “As long as children come across, I’m a happy person”. 50 Donoghue v Hayes [1831] IR Ex Ch 265 at 266 cited in McGuiness v JT Publishing Australia Pty Ltd [1999] NSWSC 471. 51 See also Wild v John Fairfax Publications Pty Ltd (unreported, Supreme Court, NSW, Levine J, 8 August 1997). 52 Copyright Act 1968(Cth), ss 195AR (attribution), 195AS (integrity). 53 Copyright Act 1968(Cth), s 195AS(2).

© 156 (2007) 18 AIPJ 149 Parody, satire, honour and reputation: The interplay between economic and moral rights communication.54 They contribute new and original material to society, and ultimately to the public domain, by transforming existing material into something new.55 They allow important social commentary and an exercise of free speech. The consideration of reasonableness could also be used by the courts to recognise the desirability for freedom of expression. This has been the approach of the courts in other contexts. For example, in Brophy v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105, the court had to consider whether a statement was made reasonably and in good faith for the purposes of the Racial Discrimination Act 1975 (Cth) (s 18D).56 The meaning of reasonableness was seen as containing elements of rationality and proportionality. A presentation of a report or comment which highlights, in a way that is gratuitously insulting or offensive, a matter that is irrelevant to the purported question of public interest under discussion may not be done “reasonably”. Right of attribution and false attribution The author of a work will have the right to be identiﬁed as such whenever an attributable act, such as publication, performance, communication or adaptation, occurs.57 In general terms, an act of false attribution is: • Using a persons name in relation to a work in a way that falsely implies that the person is the author or an author of the work, or that the work is an adaptation of a work of the person. • Where a work has been altered by a person other than the author, to commercially deal with the altered work as being the unaltered work of the author, where the attributor has knowledge that it is not unaltered.58 This does not apply if the alteration was insubstantial, or the alteration was required to comply with the law, or necessary to avoid a breach of the law.59

INTERPLAY IN DIFFERENT CONTEXTS The interplay of the defence of parody or satire and moral rights will raise different issues in different contexts. The following discussion is not purported to be a comprehensive list of factual scenarios which may arise, which will be many and varied. It does, however, draw on existing practices in Australia and case law in other contexts and jurisdictions as an indication of some common issues which may arise for determination. Issues relating to the right of attribution will be considered separately. It should be noted that the comments below are speculative. There is very little in the way of guidance in the form of judicial decision or comment in Australian law. Consideration of the copyright issues is limited to the application of the defence of fair dealing for the purposes of parody or satire and not to broader issues of substantiality and infringement. Literary and dramatic works Parody, satire and moral rights issues may be raised in a number of ways in the context of literary and dramatic works. A substantial part of a literary or dramatic work may be reproduced, with changes made for the purposes of parody or satire. One example would be the practice of fan ﬁction, where the characters and plots of existing literary and dramatic works are taken and used in new works. Often this will be done in admiration of the original author, but it can also be used as a method of criticism,

54 See Pemberton G, “The Parodist’s Claim to Fame: A Parody Exception to the Right of Publicity” (1993) 27 UC Davis Law Review 97 at 106. 55 See Katyal S, “Performance, Property, and the Slashing of Gender in Fan Fiction” (2006) 14 American University Journal of Gender, Social Policy and the Law 461 at 497. 56 The facts of the case involved a cartoon which satirised the indigenous conﬂict surrounding the return of an Aboriginal leader’s head which had been held in an English museum. 57 Copyright Act 1968(Cth), s 193. 58 Copyright Act 1968(Cth), s 195AG. 59 Copyright Act 1968(Cth), s 195AG(2). Examples of laws which alteration may be necessary to comply with are defamation and copyright.

(2007) 18 AIPJ 149 157 © Sainsbury whether the criticism is directed at the original work, its author or something external altogether. It may associate the characters with elements that the author sees as undesirable, such as pornography. For example, Australian author Matthew Reilly’s fans have set up a fan fiction site, “Station 409”,60 where a contest is held to allow fans to write a different chapter of a sequel to Reilly’s novel, Contest. What recourse would the author have under Australian law if the sequel adopted a theme or style of which he did not approve or which ridiculed his distinctive writing style? Fair dealing issues In order to determine the applicability of the defence of fair dealing for the purpose of parody or satire, the court would first have to determine objectively whether the use of the work in this situation were for the purposes of parody or satire. A similar issue arose in Suntrust v Houghton Mifflin 252 F 3d 1165 (11th Cir 2001) where the defendant had produced a sequel to Gone with the Wind by Margaret Mitchell, titled The Wind Done Gone. The court accepted the defendant’s argument that her novel was a critique of Mitchell’s portrayal of slavery and the Civil War era in the American south and thus constituted a parody. The question asked was whether a “parodic character may reasonably be perceived in the allegedly infringing work”.61 The court stated that a work would be treated as a parody if its aim was to comment on or criticise a prior work by appropriating elements of the original in creating a new artistic, as opposed to scholarly or journalistic, work. The Wind Done Gone was a specific criticism of and rejoinder to the depiction of slavery and relationships between blacks and whites in Gone With The Wind.62 Once the work is accepted as a parody, it must be considered whether the dealing was a fair one. In the scenario of writing a sequel, one factor leaning towards a finding of fair dealing would generally be the considerable extent of transformation involved. Although incorporating some characters and plot, a sequel is generally written to develop new story lines, which is likely to have the effect of transforming the original into a different tale. The court would look at the extent of the copyright of characters and plots in relation to the original material added and the extent to which the sequel develops the characters and moves the plot forward. Another relevant factor would be whether or not the sequel was for commercial exploitation. A finding of fair dealing may be made more readily where the use is non-commercial.63 The effect on the market for the original will also be weighed up. Is there likely to be any overlap in market segment? It is relevant to note that any diminution in sales due to the critical impact will not be relevant. Cases stress that it is the substitutive market effect only that is relevant.64 Where there is a strong satirical or parodic element present, a sequel is likely to be seen as a fair dealing due to the amount of transformation required to produce it. It is not likely to detract from the market for the original, it may even enhance it as most people will read the original before the sequel. Right of integrity issues While the Australian courts have not yet had the opportunity to consider the test to be applied for determining an infringement of the right of integrity, the jurisprudence in Canada, the United Kingdom and the United States may serve as an indication of the likely approach. Following this, in order to succeed in an action for breach of the right of integrity, the original author needs to demonstrate that first, he or she held the belief that the subsequent work was derogatory as prejudicial to his or her honour or reputation, and secondly, with the evidence of experts, that this belief is reasonably held.

60 See http://www.come.to/station409/ (viewed 27 June 2007). 61 The court relied on the Supreme Court decision in Campbell v Acuff-Rose Music, Inc 510 US 569 at 582 (1994). 62 See Brennan D, “Copyright and parody in Australia: Some thoughts on Suntrust Bank v Houghton Mifflin Co” (2002) 13 AIPJ 161. 63 De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99; 18 IPR 292 in Hustler Magazine Inc v Moral Majority Inc 606 F Supp 1526 (CD Cal 1985). 64 See, eg, the comments of the US Supreme Court in Campbell v Acuff-Rose Music, Inc 510 US 569 (1994) that “the Court acknowledges that it is legitimate for parody to suppress demand for the original by its critical effect”. It is its substitutive effect that is relevant.

© 158 (2007) 18 AIPJ 149 Parody, satire, honour and reputation: The interplay between economic and moral rights There are two ways in which this may be possible in the context of a sequel to a literary or dramatic work. The first is that it is prejudicial because of the association of the work with undesirable themes. The second is by showing that the sequel alters the essence of the work. There are some French authorities dealing with infringement of moral rights by sequels. In litigation over the publication of sequels to Victor Hugo’s Les Misérables, the Cour de Cassation has commented that the publication of a sequel cannot be an infringement of the author’s moral rights in itself. The Court of Appeal had previously decided that no sequel could be made of this classic without it being contrary to the author’s right of integrity.65 The Cour de Cassation was of the belief that, irrespective of the quality of the sequel, the author’s heirs would need to establish that the sequel betrayed the spirit of the original.66 In Ste Gaumont and Luc Besson v Ste Publicis Conseil and Ste Francaise du Radiotelephone,67 the director and producer of the film The Fifth Element brought an action against an advertising company who had incorporated Leeloo, a character from the film, in an advertisement for Vodafone Live. This was found to be an infringement of the director’s moral right as use of the character for promotional and mercantile purposes was contrary to the spirit of the work and his intentions for it. It was a distortion of the character to use her in this commercial setting.68 In another French decision, it was a breach of the author’s right of integrity to present a fictional work as a biographical work,69 and to present a serious political work as a farce. Similarly, in Germany, the altering of the plot, characters, or atmosphere of the novel would amount to an infringement.70 A change to the essence of the work is unlikely to be sufficient alone in the Australian context, due to the requirement to demonstrate that the treatment was prejudicial to the author’s honour or reputation. This will be difficult where it is a separate work and clear to the public that it has been written by a different author. The literary merits of the sequel will not be relevant.71 Therefore, in this context, the element of prejudice may be hard to establish unless the sequel includes some undesirable elements, such as associating the characters with racism or pornography, and it could be shown that this would change the way people thought about the original. If the court were convinced that the sequel amounted to derogatory treatment, the next consideration would be whether or not the treatment was reasonable, thereby providing a defence to infringement. Even in France, where the right of integrity is quite broad, the use of works for the purpose of parody is recognised as legitimate, within certain boundaries. Article 122-572 provides that, once a work has been disclosed, the author may not prohibit parody, pastiche and caricature, observing the rules of the genre. The concept of “rules of the genre” defines the limits of acceptable parody. It

65 CA Paris, 4e ch, 31 March 2004, 202 RIDA 2004, 292. 66 The case also illustrates the issues which arise when the author’s heir is enforcing his or her moral rights after the death of the author. In this case, the great great-grandson of Victor Hugo was bringing the action. He stated that “I am not just ﬁghting for myself, my family and for Victor Hugo but for all the descendants of all writers, painters and composers who should be protected from people who want to use a famous name and work just for money”. However, Victor Hugo was previously reported as saying “The writer as a writer has but one heir – the public domain”: see report at http://www.guardian.co.uk/international/story/ 0,,2002303,00html (viewed 14 May 2007). 67 Cour d’appel, Paris, 4th chamber, section A, 8 September 2004, No 04/09673. 68 See Adeney E, “Of personalities and personae: A French victory for ﬁlm producers and authors” (2005) AIPJ 110. 69 Editions de la Siene c Chancel CA Paris, 4 ch, 29 May 2002 (2002) 194 RIDA 325. 70 Die unendliche Geschichte [1986] GRUR 460. In that case, injunctive relief was refused to the author of the novel The Neverending Story where an authorised movie adaptation altered the ending. The court found that as the adaptation itself was authorised, the economic harm that would be suffered by the producer weighed against the granting of interlocutory injunctive relief. 71 For example, in Campbell v Acuff-Rose Music, Inc 510 US 569 (1994) it was noted: “Whether … parody is in good taste or bad does not and should not matter to fair use.” 72 Law on the Intellectual Property Code, No 92-597 of July 1, 1992 (WIPO translation).

(2007) 18 AIPJ 149 159 © Sainsbury has been held that this means the parody must have a humorous or critical intent,73 it cannot be intended to harm the subjects, and no confusion should arise between the parody and the original work.74 In Australia, the factors set out in s 195AS(2) must be taken into account.75 The nature of the work here is a creative literary work as opposed to a purely informative work. The more creative a work, the more it can be seen as the type of work at the heart of moral rights theory, and thus the less likely derogatory treatment will be seen as reasonable. However, the purpose for and context in which the work is used must also be considered. Where that purpose is parody or satire there are two consequences. First, it results in the making of another creative work which benefits society. Secondly, it serves a critical or reflective purpose which also benefits society and involves an exercise of freedom of expression. Industry practice or the “rules of the genre” with respect to parody and satire would also be relevant. Once again, due to its transformative nature and unlikely impact on the market for the original, any derogatory treatment for the purposes of a parodic or satirical sequel is likely to be viewed as reasonable. Artistic works The recent dispute over the use of Belgian comic book character “Tintin” in an Australian political cartoon provides a good factual example of use of an artistic work which raises fair dealing and moral rights issues.76 Australian political cartoonist Bill Leak used the Belgian cartoon character to depict Kevin Rudd in various political cartoons featured in The Australian.77 Leak received a letter from the copyright owner threatening to sue for breach of copyright.78 Would Leak have a defence under the Australian law? Would the heirs of the author, Georges Remi,79 have any remedy for infringement of Remi’s moral rights? Fair dealing issues Leak’s cartoons are clearly in the category of political satire, attacking the politicians which they incorporate. There is also an argument that the use of Tintin represents a parody – if it could be shown that Leak selected this character due to his innocence and naïvety and the use is also a criticism of these characteristics in Tintin, as well as an attack on Rudd. There are a number of factors which may be raised against a finding of fair dealing. If the work is classified as a satire, then this raises some different considerations in determining whether the dealing is a fair one. The legal differentiation between parody and satire which is seen in the US case law is such that a work of parody has to comment on the incorporated material whereas satire can comment on something external to the material. Parody is seen as a situation of market failure, with a copyright

73 Shultz et United Syndicate Inc v Editions Albin Michel, Marion Vidal TGI Paris, 19 January 1977 (1977) 92 RIDA 167. 74 Bonnet G (ed), Code de la propreite intellectuelle (4th ed, Dalloz, Paris, 2004) cited in Adeney, n 44, p 220. 75 These factors, for a literary, dramatic, musical or artistic work, are: (a) the nature of the work, (b) the purpose for which the work is used, (c) the manner in which the work is used, (d) the context in which the work is used, (e) any industry practice, in the industry in which the work is used, that is relevant to the work or the use of the work, (f) any practice contained in a voluntary code of practice, in the industry in which the work is used, that is relevant to the work or the use of the work, (g) whether the work was made: (i) in the course of the author’s employment; or (ii) under a contract for the performance by the author of services for another person, (h) whether the treatment was required by law or otherwise necessary to avoid a breach of any law; (i) if the work has 2 or more authors – their views about the treatment. 76 Tintin is not new to legal controversy. In 2001 copies of a book, Tintin in Thailand, depicting the character and his friends in gay bars, and his dog Snowy engaging in sexual acts with a Siamese cat, were seized (see http://www.iol.co.za/general/news/ newsprint.php?art_id=qw982172941869B214&sf (viewed 27 June 2007)). 77 Leak has been quoted as saying that he was struck by the “uncanny likeness” as both possessed “unusually circular” heads: see http://www.theaustralian.news.com.au/story/0,20867,21823334-2702.html?from=public_rss (viewed 27 June 2007). 78 It seems that the parody exception is viewed narrowly in Belgium. The use of Miffy the rabbit on the cover of a magazine was found to be copyright infringement as it was too slavish a copy of the original. The moral rights of the artist were also infringed: see Deene J, “Parody exception again denied in Belgium” (2006) 1(11) JIPLP 694. 79 Operating under the pseudonym “Herge” (his initials reversed).

© 160 (2007) 18 AIPJ 149 Parody, satire, honour and reputation: The interplay between economic and moral rights owner being extremely unlikely to authorise a use of his or her work which is critical of it. Satire, on the other hand, may be seen as within the copyright owners market for licensing of adaptations. A court may see this as requiring more justiﬁcation in order to be seen as a fair dealing. The extent of transformation for the purposes of parody or satire is minimal. In order to be effective, the cartoon character needs to be faithfully reproduced, with some changes to his facial features to resemble Kevin Rudd. The cartoon image used by Leak incorporates the dress style of the original and his distinctive tufted hair. However, the use is in the course of political communication, which may also be a relevant consideration. Further, the use of the work is unlikely to have any impact on its market.

Right of integrity issues Minor alterations to artwork, or a reproduction of it, are unlikely to amount to a breach of the right of integrity. The UK cases of Tidy80 and Pasterfield v Denham [1999] FSR 168 also involved allegations of breach of the right of integrity in the context of artistic works. In the former case, an interlocutory application, Rattee J held that a reduction in size was not necessarily a breach of the right of integrity. In the latter case, the alteration of an artistic work in a tourist brochure, involving some cutting and alteration to the colours. It was found that the author had not adduced enough evidence to establish the objective requirements of prejudice to honour or reputation. In Germany, the adding of frames to paintings which extended the patterns of these paintings was found to contravene the artist’s right of integrity.81 More dramatic changes are potentially actionable. In Snow,82 the artist had created a sculpture for a shopping centre which featured 60 geese in various natural poses. During the Christmas season, the shopping centre management added red ribbons to the necks of the geese. The artist was able to rely on his right of integrity to require the ribbons to be removed, comparing the treatment to dangling earrings from the Venus de Milo. O’Brien J accepted that this was a distortion or modification of the work which would be prejudicial to his honour or reputation. This was a view shared by other artists and people knowledgeable in the field. The changes made to Tintin are not in the nature of minor alterations. The change to his facial features alters a fundamental part of the work. It is possible that the author’s heirs would be able to demonstrate prejudice to his honour or reputation as a result of the changes. In assessing the applicability of the defence of reasonableness, the nature of the work as a creative artistic work would be considered together with the fact that it has been used with minimal transformation. This would be weighed against the parodic or satiric purpose of the use, which would make it likely that the use be seen as reasonable. It remains to be seen what effect the political nature of the use would have in an Australian copyright action. One argument which may be raised is that the right of integrity should be read down to allow for freedom of political communication issues. A similar argument was rejected in the United Kingdom in Confetti Records v Warner Music UK Ltd [2003] EMLR 35; [2003] EWHC 1274 (Ch). Lewison J stated that is was not necessary to read down s 80 of the Copyright, Designs and Patents Act 1988 (UK) in order to ensure compliance with Art 10 of the European Convention of Human Rights. It was stated that Art 10 allowed states to curtail the right to freedom of expression in order to protect the reputation of others. The Australian law is different from that in the United Kingdom, which does not contain the general reasonableness defence, so it could be argued that the “reasonableness” defence encapsulates these issues. If the political context is one of which the author or heirs do not approve, this may also be relevant. The French case of Pontoreau ADAGP v Association Front National CA Versailles, 1 Ch,

80 Tidy v Trustees of the Natural History Museum [1996] EIPR-D 86; (1995) 39 IPR 501. 81 Hundertwasser BGHZ 150, 32. 82 Snow v Eaton Shopping Centre (1982) 70 CPR 105.

(2007) 18 AIPJ 149 161 © Sainsbury 20 December 2001; (2002) 192 RIDA 44883 involved the use of artistic works in electoral propaganda by a right wing group. An argument based on free speech was rejected, the court noting that freedom of expression did not allow for the use of other’s material with impunity. Similarly, in Soc Le Chant du Monde v Soc Fox Europe [1953] Recueil Dalloz [D Jur] 16, 80 (Cour d’Appel, Paris), the Russian composer Shostakovich was able to prevent the use of his music in a film with an anti-Soviet theme of which he did not approve. Musical works A common practice in comedy is to take an existing song, make minimal changes to the music, and change the lyrics. The ABC television program, The Chasers War on Everything often includes a cover version of a well-known song in which the lyrics are altered for comic effect. For example, they recently featured the U2 song “I Still Haven’t found What I’m Looking For”, recasting it as “I Still Can’t Accept What a Nob I Am” in a criticism of the band’s lead singer. Fair dealing issues A parodic or satirical purpose is reasonably evident.84 In assessing whether the dealing is fair, most music parody will reproduce the musical work in close to its entirety, making changes only to the lyrics. While this would ordinarily weigh against a fair dealing finding, the courts have noted the particular application of this principle to musical parodies. In Fisher v Dees 794 F 2d 432 (9th Cir 1986) it was noted that it is difficult to parody a musical work without near exact copying, as this is the only way of ensuring it is identifiable by the public. There is also considerable creative effort in producing a new combination of the words and music. Further, there will not be any significant overlap in the markets for the original work and the parody.85 Right of integrity issues The disassociation of the words and music of a sound recording so that it could be used for karaoke has been found to infringe the author’s right of integrity in France.86 Under Australian law, however, the artist would need to establish that is was prejudicial to his or her honour or reputation. Australian courts have had to grapple with the issues raised by transformation of musical works in other copyright contexts. In Schott Musik International GMBH & Co v Colossal Records of Australia Pty Ltd (1997) 75 FCR 321; 38 IPR 1, the Federal Court had to determine whether a re-mixed techno version of Carl Orff’s “Carmina Burana” debased the original.87 There was no clear consensus as to how this would operate in the context of a musical work. One issue discussed by the court was whether the use of a musical work in a different context could debase the work itself.88 This will not be relevant to a moral rights determination as the legislation is drafted broadly enough to allow for this possibility, focusing on the effect on the author as a result of action in relation to the work. Hill J thought that one way a work could be debased would be if it brought into the original, associations which a reasonable person would find objectionable, such as associating it with terrorism or racism. He made the comment that perhaps a parody might bring about the result that one could not recall the original without the parody coming into mind in such a way as to diminish the value of the original.

83 Cited in Adeney, n 44, p 184. 84 For example, in Campbell v Acuff-Rose Music, Inc 510 US 569 (1994), the defendants had produced a parodic version of “Pretty Woman”, reproducing the music of the original and altering the lyrics. The court found that the 2 Live Crew song “Pretty Woman” was a parody as its comical lyrics satirised the original work, using shocking lyrics as a juxtaposition to highlight the naïvety of the Orbison version. 85 For example, in Campbell v Acuff-Rose Music, Inc 510 US 569 at n 14 (1994), Souter J noted: “the intended audience for the two songs [‘Pretty Woman’ and a rap version] is entirely different. The odds of a record collector seeking the original composition who would also purchase the 2 Live Crew version are remote.” 86 See Editions Zagora c SDRM, CA Paris, 4 ch, 29 May 2002 (2002) 194 RIDA 325. 87 Prior to the introduction of moral rights, the use of the compulsory licence for making cover versions of musical works in s 55 was subject to the requirement that the cover version not “debase” the original. 88 Lindgren J thought that debasement could not occur by association with auditory or visual material because if that caused someone to think less of the work, that would not be a product of the arrangement itself, but of the accompanying material.

© 162 (2007) 18 AIPJ 149 Parody, satire, honour and reputation: The interplay between economic and moral rights Another issue was the nature of the test used to determine whether a subsequent work debased the original. The court was split as to whether this required the court to make its own aesthetic judgments. Wilcox J believed that it would be relevant to ask whether the adaptation was so lacking in integrity or quality that it could be said to have degraded the original. An adaptation with its own integrity, even if musically inferior, radical or distasteful, would not be degrading. The court would have to determine whether it was lacking in integrity. Hill J thought that the test to be adopted was whether, as a consequence of the adaptation (taking into account that it differs from the original), a reasonable person will be led to think less of the original. He saw the test as objective, relieving the court from the danger of artistic censorship. Lindgren J thought that the court would be required to make an aesthetic judgment and compare the original with the adaptation. It would also require more than an opinion that the adaptation is musically inferior and would be less likely to be a debasement when it makes the original musical work available to the musical tastes of a different period of time, or a different sub-culture and which thereby acquired its own integrity. The test in a moral rights context, following authorities in other jurisdictions, is likely to more closely resemble Hill J’s objective focus, although the focus will be on the effect on the author’s honour or reputation, rather than on the original musical work. In a moral rights context, there are some decisions in other jurisdictions dealing with use of musical works. In the UK case of Morrison Leahy Music Ltd v Lightbond Ltd [1993] EMLR 144, George Michael and the owner of copyright in his musical works brought an injunction to prevent the defendants releasing a sound recording consisting of a medley derived from five of Michael’s compositions, interspersed with other music (the “Bad Boys Megamix”). An injunction was granted, the judge holding that it could arguably amount to a breach of the right of integrity, on the basis that taking short snatches from their original context could alter the character of the works – both the music and the words. Expert evidence as to the effect of the alterations will be essential. In Confetti Records the plaintiff’s claim for infringement of the right of integrity failed due to lack of expert evidence to support the author’s opinion. In that case alterations had been made to a musical work to re-mix it and include different words which allegedly contained references to violence and drugs. It may be difficult to demonstrate the required element of prejudice through minor changes to the musical work alone. However, it would be possible to argue that the change of words means that the music is then associated with some undesirable content and the honour or reputation is prejudiced in this way. In the German case of Springtoifel BGH [2002] GRUR 532, a band was able to object to the reproduction of one of its songs on a compilation album with a neo-fascist theme. This was found to be an impairment of the personal interest of the band members and thus endangered their “legitimate intellectual or personal interests in the work”. Similarly, although in the context of art, in Wojnarowicz v American Family Association 745 F Supp 130 (1990), an artist was able to prevent the use of his art in an American Family Association pamphlet. The artist’s works were directed at bringing attention to the AIDS epidemic and often incorporated sexually explicit images. They have been used by the Association in a pamphlet directed at lobbying to stop public funding of such works. The works had been cropped, which was found to have reduced them solely to sexual images devoid of the political and artistic context. There was evidence that this was likely to have jeopardised the monetary value of his works and impaired his professional and personal reputation. A fair use defence, however, was upheld. The reasons behind this finding were the good faith motives of the defendants and the fact it was in the context of debate on a volatile social issue. Any adverse effect on the market for the plaintiffs work was acceptable as with any publication which criticised or commented on the work. Therefore, a claim for copyright infringement was dismissed. Cinematograph films The facts of the recent litigation over “The Panel”89 offer a good illustration of how film and broadcasts may be used for the purposes of parody or satire (as distinct from recreating the underlying

89 TCN Channel Nine Pty Ltd v Network Ten Ltd (2001) 108 FCR 235; 50 IPR 335 (Conti J); TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2002) 118 FCR 417; 55 IPR 112 (Full Federal Court); Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273; 59 IPR 1 (HC). The High Court’s decision focused on the scope of protection of a television broadcast, and not the fair dealing issues.

(2007) 18 AIPJ 149 163 © Sainsbury literary and dramatic works). The litigation involved the use of extracts from Channel Nine broadcasts in the Channel Ten program “The Panel”. Extracts of between eight and 42 seconds were taken, with the panel members commenting on the extracts in a humorous way. Fair dealing issues While the decisions were before the introduction of the defence of fair dealing for parody or satire, some of the comments of the courts are indicative of how the defence may be considered, and the courts approach to fair dealing in general. Conti J, at first instance, decided that a substantial part had not been taken.90 However, he went on to make some comments on fair dealing in general, and parody and satire in particular: • He distinguished between parody, satire and burlesque. Using the Macquarie Dictionary definitions, the essence of parody is imitation. Burlesque is in the nature of vulgarising parody. Satire is a form of ironic, sarcastic, scornful, derisive or ridiculing criticism of vice, folly or abuses, but not by way of an imitation or take-off. Conti J was of the belief that the main use here was for satirical purposes as the parts of film and broadcast taken were used to provide a critique of individuals, institutions or society in general. • Citing the authority of Hubbard v Vosper [1972] 2 QB 84 at 94, some factors which may make a dealing for the purposes of criticism and review unfair would be if the extracts are too many and too long, if they are used to convey the same information for a rival purpose. The question of proportion was seen as important – short extracts and long comments were more likely to be fair. • It should not matter if the comments were unbalanced or unrepresentative as long as the criticism was not used as a guise to profit unfairly from the other work.91 • One test would be to ask whether there has been a “pirating” by the alleged infringer in the form of significant interference with his or her commercial interests. A number of these principles translate into the context of parody or satire. It should be genuine and not a substitute for creating new entertainment or another oblique or hidden purpose. Once a genuine purpose of parody or satire is established, the fact the critical element or attack is unbalanced should be irrelevant. As the use of extracts from a film or broadcast will not involve imitation or mimicry, it may be classified as satire. The effect on the market for the original work, by substitution with the parody or satire, is also important. Sundberg J in the Full Federal Court noted that fair dealing involves questions of degree and impression, on which different minds can reasonably come to different conclusions. This illustrates the difficulty in finding guidance from previous cases. This case provides a good illustration, with the Full Federal Court judges reaching different conclusions on many points from each other and from Conti J. Right of integrity issues In this context, there has been no alteration to the subject matter itself, the author would need to demonstrate that the context in which the work has been used is prejudicial to his or her honour or reputation. Where the use of the work is shown to be for the genuine purpose of parody or satire, and no more is taken than is necessary to achieve this purpose, it is likely that this will lead to a finding of reasonableness.

ATTRIBUTION, PARODY AND SATIRE While it is the right of integrity that is going to produce the most overlap with parody and satire, there are also attribution considerations. Where a substantial part of an existing work is used in a parody or satire the right of attribution arises. This may be undesirable for the parodist or satirist as it may impact on the message of their work. Spelling out that the work incorporated is that of a different author may limit the comedic impact of parody or satire and may be one factor taken into account in determining whether a failure to attribute was reasonable.

90 This was based on an interpretation of television broadcast that was overturned on appeal. 91 Citing Time Warner Entertainments Co Ltd v Channel Four Television Corp plc [1994] ELMR 1; (1993) 28 IPR 459.

© 164 (2007) 18 AIPJ 149 Parody, satire, honour and reputation: The interplay between economic and moral rights The parodist may also run the risk of false attribution, as the case of Clark v Associated Newspapers Ltd [1998] 1 WLR 1558; (1998) 40 IPR 262 demonstrates. In that case, the defendant had published newspaper articles in the form of parodies of the well-known diaries of the plaintiff. While the real details of authorship were contained in the standfirst, the use of the plaintiff’s name in the title was to be a false attribution of authorship. While the article contained a number of different messages of authorship, it was the dominant message that was important, which was that contained in the title.92 The decision does emphasise the significance of ensuring that no confusion arises over the authorship of the parody or satire and the authorship of the incorporated work.93 For an effective parody or satire, this should not be an issue. Where is does occur, it would weigh against a finding of fair dealing and a finding of reasonableness for the purposes of a moral rights defence as well as constituting false attribution.

ANALYSIS OF THE AUSTRALIAN LAW The above has highlighted the legislative and theoretic dichotomy between parody, satire, and fair dealing on the one hand while pointing out the practical overlap which will occur in many factual situations where both areas of law are in issue. The overlap arises predominantly in the factors used in determining whether a dealing was fair for the purposes of the parody or satire defence, and in determining whether the treatment was reasonable for the purposes of providing a defence to the infringement of moral rights. The following factors will be relevant to both determinations: • The nature of the copyright work which has been used. For example, is it a highly creative artistic work, or a more functional informative work. • The nature of the dealing or treatment. Here, the extent of the transformation will be relevant, determined by looking at the amount taken in relation to the new work as a whole. It will be relevant to look at whether or not it has been used commercially or publicly. The different considerations lie in the fact that, as the fair dealing defence is in relation to the economic rights, the economic effect on the copyright owner is considered – that is, the impact of the dealing on the market for the copyright work. As moral rights are concerned with the author’s personality, this consideration is not relevant to moral rights issues. One key practical advantage in keeping the two issues completely separate arises due to the fact that the ownership of the economic rights in a work is often different to the ownership of the moral rights. The “fair” aspect of fair dealing will generally be assessed with reference to the effect of the dealing on the copyright owner, particularly in assessing the impact on the market for the work. However, the consideration of moral rights is based squarely on the effect of the treatment on the author of the work. This appreciable extent of the overlap raises two considerations. The first is whether the Australian Parliament should have eliminated the potential for overlap by engaging in a process of ranking. This could have been achieved by eliminating the application of moral rights to parody or satire leaving the fair dealing defence as the only issue to be determined. The other extreme would be to provide that a dealing which infringes the author’s moral rights is never fair for the purposes of parody or satire. These extremes would have the benefit of simplicity, but would eliminate the operation of important areas of law, each justified in their own right. A consideration separate to ranking is to examine whether the legislation could have been drafted in a way to maintain the separateness of the issues, but reduce the inevitable overlap between them. One solution proposed is that once it has been determined that a dealing is a fair one for the purposes of parody or satire, it should be presumptively reasonable for the purposes of providing a defence to

92 The decision has been criticised as “enshrining in intellectual property law the notion of the wrong way to read a newspaper” and an overprotective application of moral rights. See Harrison R, “Pastiched-Off” (1998) 9(5) Entertainment Law Review 181 at 181. 93 This was emphasised in the “Maske in Blau” decision where the defendant produced the plaintiff’s operetta with some modiﬁcations. Some additional music had been added in from Swan Lake, a Javanese waltz and an Argentine tango. This was held to be a violation of moral rights as it would have created the impression that the music came from the composer of the opera. 29 April 1970, 55 BGHZ 1.

(2007) 18 AIPJ 149 165 © Sainsbury infringement of moral rights.94 The problem with simply concluding that a fair dealing, for the purposes of infringement of copyright, should automatically be reasonable for the purposes of providing a defence to the infringement of moral rights, is in the focus of the former issue on the copyright owner and the impact on the economic rights of that person. If an extra consideration were listed in the fair dealing provisions to focus attention also on any prejudice to the author’s honour or reputation resulting from the dealing, this concern may be overcome. That way, the moral rights of the author, the economic rights of the copyright owner and the rights of the parodist or satirist can all be taken into account. CONCLUSION The application of a fair dealing defence, and the moral rights legislation, leaves a lot of scope for interpretation and flexibility by the courts. Open to interpretation are the questions of when a dealing will be “fair”, when treatment will be “prejudicial to the author’s honour or reputation”, and when will it be “reasonable”. This is not a fault in the law, but a situation in which flexibility is appropriate so that competing claims can be balanced. It has been stated that: In all legal orders, legal standards or models such as “good faith”, “fair dealing”, “the reasonable man”, or “the conscionable man” play an important role. They provide by their vagueness and indeterminacy legal norms tolerant of conflicting solutions in broad penumbral areas, even while in the core area they admit in the law the more coherent insights of society’s widely shared convictions. In the former area they cover over conflicting judgments; in the latter they promote coherence of the law with the contemporary mores.95 While the substantive application of the laws is going to depend on the concrete rules that the courts develop and their approach to moral rights and fair dealing, in the absence of judicial guidance the law has an impact on a social level, setting expectations and shaping community attitudes. It is important that the moral rights of the author should not be used to stifle criticism or comment, even where it is prejudicial. It is equally important that the parodist or satirist show some respect for the author of the copyright work which they are using. Although moral rights pre-date the defence of fair dealing for parody or satire in Australian law, it is likely that due to our common law emphasis on the economic rights of the author, a legitimate parody or satire will not be seen as an infringement of moral rights. However, there are likely to be grey areas and situations in which use for parody or satire is not reasonable. Without wishing to be definitive, here are some suggestions of when this may be the case: • Where the parody or satire may be mistakenly seen as the work of the author. In any effective parody or satire, this will not be the case. • Where it is motivated by malice and excessively critical. • Where it irreversibly alters an original artistic work. Some of these grey areas could be minimised by a statutory statement of the factors relevant to determining when a dealing for the purposes of parody and satire is fair, and a deeming provision to eliminate the overlap between these factors and those relevant to determining when derogatory treatment or failure to attribute will be reasonable.

94 Law Council of Australia, n 7. 95 Sonte J, Legal Systems and Lawyers Reasonings (Maitland Publications, 1968) pp 21-22 cited in Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [76] 127-128 (French J).