Not all’s “fair dealing” in war and Greenpeace: Federal Court confirms limits of the “parody or satire” exception to copyright infringement

The Federal Court’s decision in AGL v Greenpeace^[1] confirms that using a corporate logo in activist or protest materials may be permissible under both copyright and trade mark law, but only where that use constitutes a “fair dealing” for the genuine purpose of “parody or satire”. Not all such uses will fall within that exception, so a fine line must be trodden to avoid infringement.

Key takeaways

• Use of a trade mark, such as a logo, to identify the associated brand or company as the subject of critical comment, parody or satire will not in general amount to trade mark infringement.
• Use of a corporate logo in such materials may constitute copyright infringement. However, such use may be permissible if it constitutes a fair dealing with the copyright work for the genuine purpose of “parody or satire”. This description is not met simply because the materials are critical of the target, and requires consideration of the intended use on a case-by-case basis.
• The separate fair dealing exception for the purpose of criticism or review applies to criticism or review of a copyright work, and not to criticism of a person (or organisation) generally.

Click here to read our full analysis of the decision and its implications for brand owners.

[1] AGL Energy Limited v Greenpeace Australia Pacific Limited [2021] FCA 625.