3.2.5 Consideration
Purpose
62 For the following reasons, in my view the impugned uses by Greenpeace fall within the meaning of "parody or satire" as those terms are contemplated within s 41A. Having regard to the overlap between those two concepts, it is unnecessary to distinguish between parody on the one hand and satire on the other.
63 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 setting mimics elements used in AGL's Brand Guidelines, thereby creating a "corporate look" about the Greenpeace images that also juxtaposes the AGL corporate branding style with an obviously non-corporate message, creating an incongruity that is striking to the viewer. The ridicule potent in the message is likely to be immediately perceived. It is stronger in the image of the young person with the goggles and mask, for example in the street posters. Many would see these uses of the modified AGL logo as darkly humorous, because the combined effect is ridiculous. 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. Anyone reading the message would understand that the company held up for criticism as Australia's Greatest Liability is not the author of the message. The viewer would understand that the message came from Greenpeace.
64 These findings reflect how I consider that objectively viewed, the content of each of the following impugned uses of the AGL logo is likely to be perceived by people who encounter it in:
(a) the online banner advertisements;
(b) the street posters; and
(c) the parody website.
65 Turning to the other impugned uses, the protest poster image does not involve the tagline "Australia's Greatest Liability". It is a photograph of a school student holding up a poster bearing the AGL logo with the words "Australia's Biggest Climate Polluter" and "Greenpeace". It is a full page image located on page 4 of the Exposing AGL report opposite the Executive Summary. The photograph may be regarded as depicting a protest, but I cannot see any element of parody or satire, whether taken alone or in conjunction with its accompanying text. Similarly, I do not consider that the photographs of the placards identified as (a), (b) or (d) in the annexure to these reasons fall within the meaning of parody or satire; none have such a use of irony, sarcasm or ridicule that would meet the meaning of these terms. The image in (c), however, provides a humorous juxtaposition of the AGL logo in a black cloud, held above its Loy Yang A power station in a manner that suggests the cloud is emanating from the power station, and is, in my view, sufficiently parodic or satirical.
66 I now turn to the social media posts, examples of which are set out in the annexure. In my view the use of the AGL logo in the Instagram, Facebook and LinkedIn posts in (a), (b) and (d) would not be perceived to have the characteristics or parody or satire. By contrast, the use in the Facebook and Twitter posts exemplified in (c) and (e) would, those each using the modified AGL logo in a context falling within my findings at [63] above.
67 The findings that follow in this section are directed to those uses that I have found were made for the purposes of parody or satire (which for convenience I refer to as the Greenpeace satirical uses).
68 I do not accept AGL's submission that because Greenpeace seeks to bring about change by its media campaign, that must be considered to be its true purposes, thereby supplanting any other. It is not antithetical to the operation of the defence that an otherwise infringing work was created for more than one purpose. As the Full Court found in Nine, FFC (per Hely J, Sundberg and Finkelstein JJ agreeing), the fair dealing defences are not so constrained that another purpose is not also permissible (at [104]):
Ten's purpose in broadcasting its programme "The Panel" may have been, as Nine asserts, to entertain and to achieve ratings. If it does so by means of a programme involving or including criticism, review or reporting of news in which there is fair dealing with material in which copyright would otherwise subsist, then Ten is not disentitled from relying on the s 103A and s 103B defences by reason only of the commercial nature of its activities. Criticism may involve an element of humour, or "poking fun at" the object of the criticism. The fact that news coverage is interesting or even to some people entertaining, does not negate the fact that it could be news: Nine Network Australia Pty Ltd v Australian Broadcasting Corporation (1999) 48 IPR 333 at 340 pars [34] - [37]. News may be reported with humour and still fall within the ambit of s 103B.
69 The purpose of parody or satire is frequently to attract the attention of viewers and draw to their attention an object of criticism or ridicule. I reject the contention advanced by AGL that the satire or parody was supplanted by a disqualifying ulterior motive in the present case. The facts of the present case are a far cry from those in Palmer.
70 Nor do I accept that for the defence to apply, the parody or satire must be directed towards the artistic work itself. That was not the effect of the finding of Katzmann J at [353] of her reasons in Palmer. Section 41A directs attention to the dealing with the work. Her Honour found that the defence did not apply because it was the images in the videos to which the infringing song recording had been synchronised, not the dealing in the song in suit, that had been used to create any satire: at [352]-[353]. Her Honour commented that "[the infringing song] was not used to satirise anyone or anything, nor were the lyrics as varied" at [353].
71 Some of the sources to which I have referred in sections 3.2.1 and 3.2.2 above do suggest that there must be a link between the parodic or satirical work and either the original work or the creator or owner of the original work: see eg Supplementary Explanatory Memorandum at [44], Nine, Conti J at [17], Macquarie Dictionary definition of "parody". If there is such a requirement, in the present case, the impugned works make plain the distinction between the satirist (Greenpeace) and the owner of the copyright work (AGL).
72 Moreover, the addition of the words "Australia's Greatest Liability" as a tagline to the AGL logo does have some transformative effect, by "adding something new, with a further purpose or character": American Geophysical Union v Texaco 60 F 3d 913 (2d Cir, 1994), cited in Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984; 189 FCR 109 (Bennett J) at [142]); Oracle at 24.
Fair dealing
73 Having determined that the use of the modified AGL logo by Greenpeace has a parodic or satirical purpose as required by s 41A, it is now necessary to consider whether the dealing with the AGL Logo in the Greenpeace satirical uses amounts to a "fair dealing". In my view it does. As a matter of structure it is convenient to assess the factors that I have identified in section 3.2.3 above by reference to those identified in s 40(2) of the Copyright Act. I address the Greenpeace satirical uses compendiously, although in making the findings below, I have considered each separately.
74 The purpose and character of the dealing by Greenpeace (s 40(2)(a)) is, as I have found, parodic or satirical, largely for the reasons set out at [63] above. I have accepted that Greenpeace's intention was to draw public attention to, and to promote public debate about, what Greenpeace believes to be AGL's "greenwashing" behaviour, by depicting AGL's logo and trade livery against what Greenpeace perceives to be AGL's "real" behaviour. The ultimate aim of Greenpeace's media campaign was to promote change at a board level within AGL.
75 AGL's submission that there was no need for Greenpeace to use the AGL logo and that it elected to do so to get as close as possible to the AGL brand and make it "toxic" is to be understood in the light of the nature of the s 41A defence and the nature of the work that has been reproduced. As I have noted at [80] above, copyright protects the owner's interest in the artistic work, it does not provide a mechanism for protecting a copyright owner's reputation. Indeed s 41A is a defence that specifically permits an infringement of copyright for the purpose of parody or satire. These are activities that intrinsically involve irony, sarcasm or ridicule to emphasise and promote criticism of the subject work, or its owner or creator's conduct. Once it is established that the purpose of an alleged copyright infringement satisfies the definition of parody or satire, it can hardly be considered to not be "fair", for that reason alone, to embark upon that conduct. It was no doubt for that reason that Pagone J in Pokémon Company observed at [70] that the relationship between a dealing as "fair" and the purpose as "parody" (or, I interpolate, "satire"), is apt to overlap, if not be co-extensive. However, as Pagone J went on to say, considerations of fairness will serve to elucidate whether or not the purpose was, truthfully, a commercial exploitation of the original work clothed in the dress of parody or satire.
76 The submission advanced by AGL that Greenpeace elected to use the AGL logo to make AGL's brand toxic requires close attention. It is true that the briefing material provided to Monster by Greenpeace refers to the objective of "removing [AGL's] social license and making their brand toxic". This is colourful language, perhaps rhetorical hype of a type typically used in advertising and also environmental campaigning (which is no doubt tempted to pun on words like "toxic"), but in substance it does little more than indicating that it wanted Monster to develop a campaign that would assist Greenpeace in criticising AGL's conduct and provoking debate.
77 There is, of course, a balance to be considered. Has Greenpeace crossed a line such that its dealing in the AGL logo is unfair to AGL? In my view it has not, when one has regard to the types of the Greenpeace satirical uses. Of particular note is the clear attribution of authorship ("by Greenpeace"). That attribution commands attention, because each of these uses immediately contrasts the AGL logo against a strongly negative "message". No sensible reader can conclude other than that the impugned uses are statements emanating from Greenpeace about AGL. The reader will immediately deduce that AGL is the object of the message, not the author of it and that AGL does not endorse and is not the author of the modified AGL logo.
78 Nor, in my view, may it be said that Greenpeace has an ulterior motive, in the sense contemplated by the authorities. Although the ultimate purpose of the Greenpeace campaign is to bring about a change in AGL's environmental conduct, the satirical message in the impugned materials has only the effect of drawing viewers into the debate about AGL's environmental impact. As noted in Nine, FFC, more than one purpose is permissible in a dealing with copyright material.
79 Greenpeace also relies on its purpose as being one that is of public interest and of benefit to the community, namely to draw attention to important issues relevant to climate change . It relies on the decision in Aid/Watch Inc v Federal Commissioner of Taxation [2010]) HCA 42; 241 CLR 539 at [47] (French CJ, Gummow, Hayne, Crennan and Bell JJ) in support of the proposition that the generation by lawful means of public debate (there concerning the efficiency of foreign aid directed to the relief of poverty) was a purpose beneficial to the community. I accept that the underlying purpose of Greenpeace was to use the modified AGL logo as part of its campaign to generate public debate concerning climate change. It was not for a commercial purpose. However, I do not consider that the factors going to consideration of "fair dealing" include a public interest component. It suffices to observe that one purpose of s 41A, apparent from the secondary materials including the second reading speeches and Supplementary Explanatory Memorandum, is to permit a degree of freedom of expression that that may otherwise be constrained by a copyright owner, so long as the dealing is fair.
80 In relation to the nature of the copyright work (s 40(2)(b)), here the artistic work protected by copyright is the AGL logo. The copyright protected lies in its existence as an original form of expression and is distinct from the rights that accrue by reason of any reputation that inures in its name or rights to AGL's benefit by reason of the AGL logo being a registered trade mark. It is to be noted that the AGL logo is a simple, homogenous artistic work of two parts, the letters "AGL" and the five radiating lines. It is not readily susceptible of division into parts. Unlike other forms of work, any reproduction of the AGL logo in a material form is likely to involve the reproduction of the whole. Furthermore, it is not necessary to alter the work or effect a "transformation" of it in order for the impugned conduct to be either "fair" or for the purpose of parody or satire. In the particular circumstances of this case, I do not consider it to be decisive that the whole of the copyright work has been reproduced (s 40(2)(e)). In Fairfax, despite finding that the works in question were not protected by copyright at [50], Bennett J went on to consider whether, if they had been protected by copyright, the fair dealing exceptions could apply in circumstances where the whole of the work had been reproduced. Her Honour concluded that, having regard to the circumstances of that case, a finding of fair dealing was not precluded (at [141]-[143]).
81 I accept there is no realistic prospect that Greenpeace would obtain the work within a reasonable time at an ordinary commercial price (s 40(2)(c)). However, given the critical nature of most parodies and satires it is in my view intrinsically likely that it would be difficult to obtain the work within a reasonable time at an ordinary price. This consideration is perhaps more apposite to the defence of fair dealing for the purpose of research or study under s 40 than the present circumstances, where Greenpeace was manifestly holding up AGL for ridicule or scorn.
82 The effect of the dealing upon the potential market for or value of the work in question (s 40(2)(d)) is unlikely to be decisive in the present context given that most parody or satire can be expected to criticise, ridicule or deprecate. In that sense, some adverse effect may be expected. However, it is relevant to note that I accept that Greenpeace is not a commercial organisation and does not compete with AGL.
83 I reject the submission advanced by AGL that in reality Greenpeace was on a fund raising campaign and that the, or a, significant purpose of it was to attract attention to Greenpeace for the purpose of eliciting donations before the end of the financial year. Nor, in my view, can it be said that the dealing was for any other financial gain on the part of Greenpeace.
84 Furthermore, one looks at the objective effect, or likely effect of the use of the modified AGL logo, it is also significant to note that the work consists of little more than the letters "AGL", which is of course immediately recognisable as the applicant's corporate name. The Greenpeace media campaign is directed toward the corporate behaviour of AGL. Any damage caused to AGL by the campaign is caused by criticism of AGL as a corporate entity, on environmental grounds. It is not the use of the AGL logo in the campaign that causes damage, but rather the informational message that is communicated in the campaign, in particular by referring viewers to the Exposing AGL report about the corporate entity. AGL does not object to the use of the three letters of its name. The use of the artistic work adds to the parodic or satirical effect of the campaign overall, particularly when used in combination with other look-alike AGL corporate branding, but in my view it is not likely to otherwise be causative of harm to AGL. Rather it is the use of the letters AGL, not of themselves capable of being an artistic work, as part of the campaign that might cause harm, but again such harm would stem from the information supplied by Greenpeace, rather than the use of the letters.
85 In Palmer two further factors derived from a fact sheet issued in 2008 by the Attorney-General's Department on s 41A (at [303]). One is whether or not the material is published. This derives from authority where a species of unfairness arises where the work in question has not previously been published. It is not presently applicable. The other is whether there was any impropriety in obtaining the material, which also does not arise.
86 Having regard to these considerations, in the context of the statements of principle set out above, my impression is that, although cutting and holding the conduct of AGL up to scorn or ridicule, a fair minded viewer of the Greenpeace satirical uses would conclude that they amount to a fair dealing with the AGL logo within s 41A of the Copyright Act.