Parody Advertising: What is it and is it Legal?

Let’s face it, we all enjoy a bit of parody advertising. Not only does it catch our attention, but it makes us laugh. But, can a piece of parody advertising actually breach any laws? What should marketers be aware of if they are considering creating a parody advertisement?

What is Parody Advertising?

The definition of parody is not provided by the Copyright Act 1968 (Cth). However, a parody is a humorous reproduction of a recognised work. Usually, a parody will mimic an original work and have strong comical elements to it. It is important to remember that a parody is different from a satire. A satire criticises and pokes fun at pieces of work.

Parody Advertising and the Law

When a marketer or individual creates a parody advertisement, they must ensure they are not breaching any intellectual property laws. So, in order to legally engage in parody advertisements, we’ll walk you through the laws you need to be cautious of. These laws relate to the use of:

• Copyright and,
• Trademarks.

As with many different types of laws, whether your parody breaches copyright laws or trademark laws is entirely dependant on the parody itself.

Copyright Laws

Copyright is a form of property right that gives the copyright owner the full and exclusive right to reproduce, republish, reuse or perform their original material or work. These materials or works generally relate to original artistic works such as images, videos, sounds and music or written works. The copyright owner holds the exclusive right to do what they wish with their works. As the copyright owner holds this exclusive right, they are able to bring any actions against potential or real infringements.

Copyright Laws and Parody Advertising

Now, the copyright owner can give others permission to reproduce or use their copyrighted work. However, there may be circumstances in which the copyright owner’s permission will not be needed. The Copyright Act states that this happens in limited circumstances, including:

• Reporting, research or study,
• Criticism or review,
• Professional legal advice and,
• Parody or satire.

Therefore, marketers or other individuals will not need to obtain copyright permission from the copyright owner to create a parody advertisement of their work. However, this is not just some wide reaching exclusive right to parody everything you’d like. The Copyright Act is clear that the use of a copyright owners work, for parody, must be ‘fair’. Therefore, if the advertisements use of parody is ‘unfair’, you may be opening yourself up to a copyright infringement claim.

What is ‘fair’ use of parody?

So, how will the Courts determine whether your parody advertisement is fair or unfair? The Courts will not focus on whether your parody is humorous or not. They will look to the whole of the advertisement and ask ‘is the parody use of the original material fair?‘ The Court may take the following into consideration:

• Nature and purpose the original work brings to your parody work,
• Type of work your parody is copying,
• Amount of the parody that makes up the copied original work,
• Effect of your parody,
• Whether attribution is given to the copyright owner.

For more information on whether your parody is ‘fair’, it’s best to get in contact with a Copyright Lawyer.

Trademark Laws

A parody of a trademark is not as common as a parody of a copyrighted work. A trademark may be a name, letter, number, colour, image, word, phrase, sound, logo or aspect of packaging. However, when we are talking about trademarks and parody, we are usually referring to a mark or logo as a whole, or a popular catch-phrase.

Parody and Trademarks

Now, in terms of using a trademark in your parody, you must be careful not to engage in trademark infringement by using the parody trademark, as a trademark. So, whether you are engaging in trademark infringement really depends on whether the parody mark is being used as a trademark. Now, the simple referencing or humorous use of a trademark in a parody does not mean that the trademark is being used as a trademark. However, it’s always best to speak to a Trademark Lawyer.

Key Takeaways

At times, parody advertising can be a great tool to grab your audiences attention. However, if you choose to engage in parody advertising, you must make sure you are not accidentally engaging in copyright infringement or trademark infringement. In relation to copyrighted works, as long as the use of the copyrighted work is being used fairly in the parody, there should be no problem. In relation to trademarks, if the parody mark is not being used as a trademark, this is also acceptable. All in all, it is up to the Courts to decide whether your parody use is legal or not, so it’s always best to speak with a professional before publishing your parody advertisements.