In AGL Energy Limited v Greenpeace Australia Pacific Limited [2021] FCA 625, AGL Energy Limited took Greenpeace Australia Pacific Limited to court over copyright and trade mark Infringement allegations. In its defence, Greenpeace asserted its use amounted to fair use dealing for the purpose of criticism or review (under s 41 of the Copyright Act) or in the alternative, parody or satire (under s 41A of the Copyright Act) and does not infringe the rights of AGL.
Federal Court of Australia Judge: Burley J Date of Judgment: 8 June 2021
AGL Energy Limited (“AGL”) is an electricity producer in the Australian market. Besides using gas, wind and solar power, it also generates electricity through its 3 coal burning power stations. AGL communicates its corporate message through the use of the its registered trade mark.
Greenpeace Australia Pacific Limited (“Greenpeace”) is a charity registered with the Australian Charities and Not-for-profits Commission. Greenpeace champions against practices that harms the environment through various media channels including online social media and peaceful protests.
On the 5 May 2021, Greenpeace launched a campaign against AGL for its undesirable environmental practices in the bid to compel AGL to move towards a zero-emission target. Greenpeace’s intention was clear – to get AGL to retire all its coal burning power stations by 2030.
Greenpeace’s campaign against AGL was aided by Monster Children Creative, a media agency under the supervision of Mr. Walker. Greenpeace added the tagline “Australia’s Greatest Liability” (“tagline”) close to the original AGL logo (collectively known as the “modified logo”). An example of the online banner used is as follows:
In February 2021, a report titled “Coal-faced: Exposing AGL as Australia’s biggest climate polluter” was commissioned and details were published. We will refer to the report as the “Exposing AGL report”.
The campaign was organised to reach out to the public and the AGL logo or “modified logo” were reproduced in various media where were subjects of dispute before the Federal Court:
a) Online banner advertisements b) Street posters c) Mock up street posters d) The parody website e) Various social media posts f) Protest poster image g) Placards
AGL took issue with Greenpeace’s use of the modified logo as part of its campaign which AGL alleged was substantially identical (but not deceptively similar with) to its AGL logo. AGL alleged copyright infringement under ss 31(1) and 36 of the Copyright Act and trade mark infringement under s 120(1) of the Trade Marks Act 1995 (Cth). AGL sought relief including declarations of infringement, injunctions restraining Greenpeace’s use of the modified log and damages including additional damages in relation to infringements.
Greenspace denied any wrongdoing. It submitted that the use of the modified logo amounted to “fair use dealing” for the purpose of criticism or review (defence under s 41) or alternatively parody or satire (defence under s 41A). Greenpeace asserted the use of the modified logo was not ‘use as a trade mark’ and hence a claim for trade mark infringement must fail.
We discuss some of the alleged copyright infringement claims and defence under ss 41 and 41A.
Whether the impugned use fell within the meaning of parody and satire
There was no dispute that Copyright subsisted in the AGL logo and AGL owns the Copyright. His Honour took the view that the impugned use of the modified logo by Greenpeace was “to imitate in such a way as to ridicule”[1] and fell within the meaning of “parody or satire”. His Honour saw no need to distinguish parody from satire as the meanings overlap.
The modified logo (with the AGL logo juxtaposed with the tagline), according to Greenpeace subjected AGL to ridicule and scorn. Greenpeace sought to draw attention to its campaign against AGL’s conduct in a humorous and yet satirical manner. Anyone who comes across the words “Presented by Greenpeace” would have known that the author of the message was Greenpeace and the campaign was targeted at AGL.
*With the exception of f) protest poster image, g) placards (namely (a),(b) and (d)) and some social media posts which featured the AGL logo but did not feature the tagline (notably the contents did not amount to parody or satire), his Honour found the use of the modified logos in all the other circumstances fell within the meaning of parody and satire.
Whether the impugned use fell within the meaning of fair dealing
Burley J considered the factors, albeit non-exhaustive, under s 40(2)(a)-(e) of the Copyright Act when assessing “fair dealing”. His Honour found the purpose and character of the dealing was parodic or satirical with the objective of drawing attention what Greenpeace believed was AGL’s “greenwashing” conduct with the use of the modified logo. Greenpeace wanted change to happen within the management of AGL. Citing Nine, FFC, more than one purpose is permissible in a fair dealing with copyright material. His Honour further observed, the objective of s 41A was to promote a degree of freedom of expression that would have otherwise been restrained by a copyright owner, in a dealing that is fair.
His Honour also noted there was no way Greenpeace would have obtained the work within a reasonable time at an ordinary commercial price (s 40(2)(c)). It’s unlikely that AGL would gladly gifted their work to be ridiculed.
Greenpeace is not a commercial entity and not a competitor of AGL and hence the effect of the dealing upon the potential market for or value of the work (s 40(2)(d)) would not be critical in the present case.
His Honour also rejected AGL’s allegations of Greenpeace using the campaign to crowdfund.
His Honour was satisfied that the impugned use of the copyright materials amounted to “fair dealing” within s 41A of the Copyright Act.
Whether impugned use (for remaining works) amount to fair dealing for the purpose of criticism or review under s 41
His Honour, after having found s 41A being applicable as defence to the impugned use of the copyright material except for f) protest poster image, g) placards (namely (a),(b) and (d)) and some social media posts (“remaining works”), had to determine if Greenpeace could rely on s 41 for defence on the remaining works.
His Honour found the following did not amount to fair dealing within the purpose of criticism or review under s 41:
- Instagram post in (a), Facebook post (b) and Placards (a),(b),(c),(d) – absence of critical comment or judgment and tagline. Placards (c) did qualify for defence under s 41A.
- Linkedin post in (d) – could not be inferred that the post was for the purpose of criticizing or reviewing AGL’s greenwashing materials
- Protest poster image (page 4 of the Exposing AGL report) – No criticism or review found
It was held:
- Greenpeace’s defence to copyright infringement succeded under s 41A for Greenpeace satirical works.
- AGL’s copyright infringement succeeded in respect of the remaining works.
- Trade mark infringement claim under s 120 failed as use by Greenpeace was not use as a trade mark
- Claim for additional damages under s 115(4) of the Copyright Act failed
Conclusion
The decision was important and had far-reaching consequences. In particular, it was important for charitable organisations or NGOs to run parodical and/or satirical campaigns without fear of litigation for copyright or trade mark infringement.
Disclaimer: The above is provided to assist in the understanding of the decision by the Federal Court of Australia. It should not be relied upon as legal advice. Any errors or omissions are the author’s. For queries related to the article, please contact the author here.
[1] Macquarie Dictionary (5th ed, 2009, Sydney)
An old-fashioned Teochew engineer who prefers writing with fountain pens to the use of smart phones, he discovered his love for writing in mid-life. He became a pescatarian a few years ago after a life-changing event. An avid reader, he is piqued by the satisfaction of tackling difficult issues in life.