conservationist wins battle against ‘Australia’s biggest responsibility’ | Dorsey & Whitney LLP


[co-authors: Shelley Einfeld, Imogen Wurf, Tricia Archuleta]

Greenpeace, the well-known environmental campaigning organization, recently prevailed over an electricity giant in the Australian case AGL Energy Limited v. Greenpeace Australia Pacific Limited. Australia’s parody and satire law is similar to that of the United States and this case presents an interesting application of these standards.

The dispute began in May 2021 when AGL Energy Ltd. (“AGL”) has become the focus of Greenpeace Australia Pacific Ltd.’s efforts. (“Greenpeace”) to end AGL’s harmful environmental practices.

AGL supplies around a third of Australian households, mainly through the use of coal-fired power plants. In recent years, AGL has presented itself as an “green” company. Greenpeace has called this marketing “green laundering” of the business and in response, Greenpeace has launched its own campaign to highlight AGL’s record as a major polluter and pressure it to withdraw from it. coal-fired electricity.

As part of its campaign, Greenpeace produced a report titled “Coal-face: Exposing AGL as Australia’s Biggest Climate Polluter”. The campaign also produced social media posts, billboards, posters and placards. The report and other campaign materials all used the AGL logo along with a slogan that played on AGL’s initials, “AGL – Australia’s Greatest Liability.”

AGL has filed copyright and trademark infringement claims in the Federal Court of Australia for the use of its logo in the campaign. Greenpeace prevailed over both claims.

Judge Stephen Burley considered whether Greenpeace’s use of the logo violated (1) AGL’s copyright or (2) AGL’s trademark.

Copyright claim

Greenpeace did not dispute that AGL owns the copyright in the logo, but Greenpeace successfully argued that it did not infringe AGL’s copyright because the use fell within the defense of fair use for purposes of parody or satire. Greenpeace has also relied in part on the defense of fair use for criticism or review; however, this did not succeed.

Section 41A of the Copyright Act 1968 provides:

41A Fair dealing for purposes of parody or satire

A fair dealing with a literary, dramatic, musical or artistic work, or an adaptation of a literary, dramatic or musical work, does not constitute an infringement of copyright in the work if it is for purposes parody or satire.

The Court held that § 41A provided an important exception to copyright infringement in order to promote freedom of expression and criticism.

In order for Greenpeace to establish the defense, it had to prove that the dealing was “fair dealing” that called public attention to something ridiculed or criticized by irony, humor or sarcasm.

AGL argued that Greenpeace intended to use the logo to create a change, rather than a parody or satire, but Judge Burley upheld the existing Australian authority by concluding that as long as the satire was the one of the objectives, the existence of another objective for the use does not prevent Greenpeace from establishing the defense.

The court ruled that the use of the logo in advertisements, street posters and the website fell squarely within the meaning of parody or satire. Judge Burley said that by modifying the logo, “the mighty ridicule in the message [was] likely to be perceived. He noted that the change to the AGL logo was “black humor” and that the combined effect of the logo and the message was “ridiculous” and that the posts in social media posts and photographs drew l attention to the fact that AGL was not the creator of the work.

AGL also argued that Greenpeace used the logo to label the company as toxic, which would not be fair dealing. But the court ruled that copyright protects an owner’s interest in their work, but it does not protect the reputation of the mark.

Ultimately, although the court generally accepted Greenpeace’s defense, some of the social media posts and placards that did not involve the clearly satirical slogan “Australia’s Greatest Liability” did not contain a sufficient element of parody or of satire and, therefore, an injunction was granted in favor of AGL. with regard to this limited number of works.

Trademark claim

The Court ruled that the use of the logo did not constitute trademark infringement because the logo had not been “used” by Greenpeace as a trademark. The Court agreed with Greenpeace’s characterization of its use and, therefore, AGL’s case did not pass the first hurdle. The Court found that the general population would not readily perceive that Greenpeace was attempting to promote goods or services using the logo.

What does this decision mean for your logo?

The court dismissed the trademark infringement and copyright infringement claims and did not award pecuniary damages to AGL, granting an injunction only for the limited number of photographs and social media posts which did not fall under the parody or satire exception described above. Accordingly, Greenpeace may use the logo with the slogan in its campaign.

This case sets an important precedent in Australia. It provides a model for other environmental and activist organizations to launch campaigns that satirize and parody big business with less fear of losing intellectual property litigation for the use of corporate logos. However, this case highlights that activist organizations need to be careful when creating their marketing materials to ensure that their satirical message is adjacent to the logo to ensure that the general perception of the material is satirical. It was relevant in this case that the slogan ‘Australian’s Greatest Liability’ appeared next to the AGL logo, and that Greenpeace’s own logo was also prominently displayed on the documents.

This Australian decision aligns with American cases like SunTrust Bank v. Houghton Mifflin Co., in which the Court determined that a parody of Blown away by the wind was entitled to the fair use defense for copyright infringement. 286 F.3d 1257 (11th Cir. 2001). The derivative work used the main storylines and characters of the original book as a way to critique the description of slavery in the United States through writing. Like the use of the AGL logo in the Greenpeace campaign, the use of the original artwork in SunTrust Bank was necessary for the critical message to be understood.

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