The Australian parody/satire fair dealing defence to copyright infringement was introduced in December 2006 (s 41A of the Copyright Act ). But does anyone really know what it covers? Humour is subjective, and there is a dearth of relevant case law in this country. Of course, the parody/satire defence doesn’t require a piece to be funny per se (although such a requirement could lead to interesting courtroom debates), and the nature of parody implies that the piece must at least be comedic in nature. But how can we know when courts will see the funny side of life and find that the defendant’s use of the work constitutes a fair dealing?
The recent UK defamation case of Sir Elton John v Guardian News & Media Limited  EWHC 3066 (QB) (12 December 2008) may offer some guidance on when Courts will consider a piece to be written with a sense of humour, and thus within the bounds of parody.
In July 2008, the Guardian newspaper published in jest a fictitious extract from the diary of Elton John about the White Tie & Tiara Ball. The Ball is an annual event hosted by Sir Elton to raise money for his AIDS charity. Sir Elton took offence at the suggestion in the fictitious diary that “Once we’ve subtracted all these costs [being the costs of hosting a lavish event as well as the cost of new dresses and diamonds], the leftovers go to my foundation”. No stranger to defamation actions, Sir Elton sued the Guardian and argued that the statement implied that his commitment to the charity was not genuine, and the Ball was an opportunity for him to “meet celebrities and/or self promotion” rather than a genuine fund-raising event.
The Guardian defended the action on the basis that the piece did not convey the meaning contended by Sir Elton because of the comedic nature of the work. The Judge agreed and found that, given the context, the fictitious diary was ironic and was “obviously a form of teasing”. No reasonable reader could interpret the diary as being a serious report of the events. The piece was a was a teasing parody, and not a news item. Ultimately, the sense of humour in which the article was written and its context was vital to a reasonable readers’ understanding of the piece, and saved what otherwise might have been a defamatory piece from falling foul of the law. Accordingly, this case offers some guidance as to what might be considered a ‘parody’ for the purposes of Australian copyright law. The factors that were important in this case were:
- The piece appeared as part of a weekly ‘diary’ column;
- The authorship was attributed to Elton John, but that was obviously fictitious and no reader would reasonably believe it to be true;
- The piece appeared in a special ‘Weekend’ pull-out section of a Saturday paper, rather than in the news section of the paper.
These factors indicated that the article was not intended to be an accurate report of facts. As the Judge said, “If that was the allegation being made, a reasonable reader would expect so serious an allegation to be made without humour, and explicitly, in a part of the newspaper devoted to news.” Similar factors may be relevant in considering whether the parody/satire fair dealing copyright defence applies in Australia. However, only time will tell. It may not always be easy to predict when the Courts will be amused.
The full text of the decision is available at http://www.bailii.org/cgi-bin/markup.cgi?=/ew/cases/EWHC/QB/2008/3066.html.