No Laughing Matter: Parody Songs and Australian Copyright Law

No Laughing Matter: Parody Songs and Australian Copyright Law

No Laughing Matter: Parody Songs and Australian Copyright Law

As with most major global events, the COVID-19 pandemic has resulted in numerous online parody songs, from ‘My Corona’, to ‘Coronavirus Rhapsody’ and riffs on The Beatles’ ‘Yesterday’. As well as providing some much-needed comic relief, these songs, and the countless other parody songs that exist in the depths of YouTube, raise interesting questions under Australian copyright law.

Do parody songs infringe copyright?

The first question, before the issue of any defences arises, is whether a typical parody song amounts to infringement of any copyright work. Under the Australian Copyright Act, it is infringement of copyright to reproduce a “substantial part” of an artistic or literary work. There are likely to be several different co-existing copyright works in any given song, including copyright in the lyrics as a literary work, copyright in the sheet music, and copyright in the master recording of the song.

In relation to infringement of the song lyrics, virtually all parody songs change the lyrics of the song to fit a new theme, meaning that it could be argued that a parody song does not “substantially reproduce” the underlying lyrics. The issue of substantiality is judged primarily by reference to quality, not quantity. Therefore, changing the lyrics in the iconic chorus of song may be preferable to changing only the verses. The extent of changes will also be relevant – changing just one word in a song to give it a different meaning may still amount to a substantial reproduction of the original lyrics.

The position is more clear-cut in relation to the copyright which exists in the sheet music for the song and in the master recording of the song. As most parodies retain the tune of the original song (often using a note-for-note identical backing track), this is likely to constitute a substantial reproduction of the copyright in the sheet music even if the entire parody consists only of a small part of the song (say, one chorus). This was considered in the famous case of Larrikin Music Publishing Pty Ltd v EMI Songs Australia (2010) 263 ALR 155, which involved a note-by-note comparison of the iconic two bar flute riff in Men at Work’s ‘Down Under’ and the children’s campfire song ‘Kookaburra Sits in the Old Gum Tree’, with the Full Court ultimately ruling that there had been a substantial reproduction.

The “parody or satire” fair dealing defence

Assuming that infringement of a copyright work is made out, the next question will be whether there are any defences available to the parody artist. Australia has several specific “fair dealing” defences to copyright infringement, the most relevant of which is for “parody or satire”. This defence was introduced in 2006 and, according to the Second Reading Speech, was intended to “promote free speech and Australia’s fine tradition of satire”. The terms “parody” and “satire” are unfortunately not defined in the Copyright Act, leaving their interpretation somewhat ambiguous. For example, does someone twisting the words of the one-hit wonder ‘My Sharona’ to refer to the coronavirus, without making a political statement or criticising The Knack, amount to a parody or satire?

The most helpful judicial guidance actually comes from a case which predates the statutory defence, TCN Channel 9 Pty Ltd v Network 10 Pty Ltd (2001) 108 FCR 235, which concerned the re-broadcast of clips on the television show The Panel. In that context, it was held, based on the Macquarie Dictionary definition of the terms, that “the essence of parody is imitation”, whereas “satire is described as being a form of ironic, sarcastic, scornful, derisive or ridiculing criticism of vice, folly or abuses, but not by way of an imitation or take-of”. This quote was applied to the “parody or satire” defence in the case of Pokemon Company International, Inc v Redbubble Ltd [2017] FCA 1541, where it was noted that “difficult questions of characterisation arise where a work has been used in a modified form”, and that it was important for courts to ensure that parody or satire is not “used as a shield to avoid intellectual work in order to benefit from the notoriety of the parodied (or satirised) work”. Of course, this arguably misses the point that the very idea of parody is often to play off the notoriety of the original artist.

In addition to being a parody or satire, a work must be considered a “fair dealing” in order to fall within the relevant defence. This is always a question of fact and degree, with relevant considerations including the nature and purpose of the use of the work, the type of work being copied, whether a licence was sought, the effect of the reproduction on the market for the original work, and the amount of the original work that was reproduced. In the Pokemon case, for example, it was held that the works in question (user-made art pieces which were sold on the RedBubble website) did not fall within the fair dealing parody or satire defence, because the purpose for which they were created was commercial gain, not to make any commentary on Pokemon, Nintendo, or anything else.

It therefore seems that some, but not all, parody songs will be protected by this defence. Where a significant amount of intellectual work has been expended in creating the parody, and particularly where the parody is commenting on the original work or artist in some way (so that it is also satirical), this defence is likely to apply. It is helpful in this regard that, in general, a parody does not detract from the market for the original work and arguably even enhances it. It seems unlikely that people will not want to stream “Dancing Queen” because they could instead listened to “Quaranqueen”.

However, where only a handful of words are changed to alter the meaning of the original song in a way that provides no social commentary, the parody or satire defence is less likely to apply, particularly if the “parody” is exploited for commercial gain. This is reflected in the recent decision of Boomerang Investments Pty Ltd v Padgett [2020] FCA 535, which involved a derivative song where only one word was changed, where the parody or satire defence was not argued.

Moral rights

Another relevant consideration is the moral rights of authors. Under Australian copyright law, authors enjoy certain moral rights in works, including literary works, such as the right of attribution, the right against false attribution, and the right of integrity in their work. Authors can consent to activities that would otherwise infringe these rights, but cannot waive the rights completely.

In relation to parody songs:

  • The right of attribution can be satisfied by identifying the author of the original song wherever the parody song is made available (for example, on the YouTube video page).
  • The right against false attribution can be respected by not falsely attributing the work to someone else or claiming that it is original.
  • The right of integrity of authorship is slightly trickier. This right will be infringed where the parody artist treats the original copyright work in a way that prejudicially affects the original author’s honour or reputation. Some parody songs, particularly those that ridicule or criticise the original artist, may risk infringing this right.

There are various defences available to infringement of moral rights, which include that it was reasonable in all the circumstances to infringe the author’s rights, or that the author consented to the act or omission.

The final note

As the above analysis demonstrates, the question of copyright infringement regarding parody songs is far from clear-cut under Australian law. This is exacerbated because many parody songs are published internationally, meaning that they are potentially subject to the law of other countries, many of which have markedly different copyright laws (America, for example, has a much broader defence of “fair use”).

There may also be issues under other Australian laws, such as the Australian Consumer Law (if, for example, the parody implies that the song has been endorsed in some way by the original artist) and defamation law (if, for example, the parody treats the original artist in a derogatory way).

In light of these considerations, and particularly the legal uncertainty regarding the definitions of “parody” and “satire” within the Copyright Act, the best approach may be to simply seek permission from the original artist whenever possible. After all, this is the approach taken by “Weird Al” Yankovic, the master of parody songs himself.

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