Not fooling around – Copyright (Parody and Satire) Amendment Bill referred to select committee, but how will it work here?

When Kahurangi Carter’s Copyright (Parody and Satire) Amendment Bill was drawn from the ‘biscuit tin’ back in November 2024, there was an unmistakeable air of déjà vu. For almost two decades now, there have been repeated, fruitless efforts by several political parties to bring New Zealand copyright law in line with that of its common law neighbours, by introducing a fair dealing exception for parody and satire. “Taking the mickey” runs deep in the veins of the New Zealand psyche, so it is perhaps surprising to many that a parodist or satirist is, at least on paper, still left exposed to the perils of copyright infringement.

Carter’s Bill replicates s 41A of Australia’s Copyright Act 1968 (Cth), which provides a standalone exception to copyright infringement where there has been a fair dealing with a copyright protected work for the purpose of parody or satire.

How will the new exception interact with moral rights?

The Bill received widespread support from Parliament during its first reading, with the only hold-out being New Zealand First, who raised concerns about the Bill’s silence on an author’s “moral rights”, and therefore voted against it.

Moral rights, deriving from the French doctrine of le droit moral, are personal, unassignable rights which attach to the author of a copyright work, no matter who goes on to own the copyright. Recognised in the Copyright Act 1994, the most relevant moral right in the context of parody and satire is the “integrity right” (codified by s 98(1) of that Act), being the right not to have one’s work subjected to a “derogatory treatment”.

The “integrity right” protects an author against the “distortion or mutilation” of their work, if such distortion or mutilation is “prejudicial to [their] honour or reputation”.

The most well-known case involving the integrity right comes from Canada in 1982, where Michael Snow, the sculptor of a work called Flight Stop – a flock of geese displayed in Toronto Eaton Centre – applied for an injunction to prevent the mall putting Christmas bows on the sculpted geese. The Court cited testimony from Mr Snow and his artistic colleagues that such an adornment would be prejudicial to the artist’s honour and reputation. Mr Snow claimed that the treatment was “not unlike dangling earrings from the Venus de Milo”, with his lawyer comparing it to “putting a wristwatch on Michelangelo’s David”. The Ontario High Court of Justice found that Mr Snow’s integrity right had been breached and accordingly granted the injunction.

The consideration of honour and reputation has become a more objective exercise since the Snow decision. In the 2012 case of Perez v Fernandez, the Federal Court of Australia relied on expert evidence about the reputational impact of associations between musical artists and DJs to find that Mr Fernandez, a.k.a. “DJ Suave”, had infringed the integrity right of Mr Fernandez (a.k.a "Pitbull"), by implying a collaboration that did not exist.

The integrity right raises an obvious question when parody is concerned, given that parody naturally involves the “distortion” of a work for any humour to be generated from that work and is often designed to have reputational impact. While distortion of a work is necessary for any parody to function, the nature of the parody may be deemed prejudicial to the original author.

New Zealand First’s concern is something that our Courts will need to grapple with if the Bill is passed: how will the new exception interact with the rights of authors to have their work respected? The Government indicated in a policy document released in early June that the introduction of a parody and satire exception “[w]ould not change the Act’s moral rights framework”, which once again gives us no guidance on how the proposed exception will interact with the integrity right.

What can we learn from the Australians?

While the New Zealand Courts are yet to face any cases of comedic value, we can glean guidance from the Australian Courts, who have heard a handful of relevant cases since the introduction of the equivalent Australian defence back in 2006.

Australia’s two leading parody and satire cases were heard by the Federal Court within months of each other in 2021. Universal v Palmer involved prominent Australian businessman and politician Clive Palmer, who was sued for copyright infringement by Universal Music Publishing for the distribution of a political campaign song called Aussies Not Gonna Cop It, which reproduced a substantial part of the Twisted Sister song, We’re Not Gonna Take It. The other case, AGL Energy v Greenpeace, involved Greenpeace’s use of AGL Energy’s trade mark in a campaign, which implied that the company acronym ‘AGL’ (derived from the original name: “Australian Gas Light Company”) should perhaps instead stand for “Australia’s Greatest Liability”, in the context of criticising AGL’s allegedly poor environmental record.

The Federal Court, in both cases, confirmed that fair dealing for the purpose of parody or satire must meet two separate tests: (1) the dealing must be fair, and (2) the purpose of that dealing must be for the purpose of parody or satire. But what do the “fairness” and “purpose” limbs of the defence mean in practical terms?

"Fairness"

The Federal Court analysed several specific factors, which will also likely be used to determine the “fairness” of a dealing for the purpose of parody or satire in New Zealand if the Bill is passed here. While these factors appear in the Copyright Acts of both Australia and New Zealand as being relevant only for analysing the “fairness” of a use for research or study, the Federal Court has confirmed that these factors are equally relevant to the interpretation of the parody or satire fair dealing defence. In the Palmer and Greenpeace cases, the Court considered:

• The purpose and character of the dealing;

• The nature of the work being dealt with;

• The possibility of obtaining the work within a reasonable time at an ordinary commercial price;

• The effect of the dealing upon the potential market for, or value of, the work being dealt with; and

• The amount and substantiality of the taking.

In assessing the first factor above, guidance could possibly be taken from the law governing “fair use” in the United States, which considers whether the use involves a ‘transformative purpose’ as opposed to a purpose which merely competes with the original (see: Andy Warhol Foundation v Goldsmith (May 2023) (SC)).  

Ultimately, the fairness of a dealing is “a matter of impression” and is dependent on the type of dealing involved. Parody and satire necessitate a degree of flexibility with these considerations, given that the owner of a copyright work is unlikely to grant a licence to a parodist who wishes to spoof their work or potentially impact their reputation. Further, a parody inherently involves a substantial taking in order to make its point. In Palmer, the Court found that Palmer’s dealing was not fair, as it was merely “opportunistic” and sought to take advantage of the song’s “notoriety or popularity and the message it conveyed”. A relevant consideration in that case was that the work was available for licensing within a reasonable time at an ordinary commercial price, and that the original work had previously been used as a ‘protest song’ to accompany political events.

"Purpose"

The second step is to consider if the fair dealing is “for the purpose of parody or satire”. Parody and satire are distinct concepts. Parody critiques a work “from within” by using the form of that work, while satire operates more broadly as “an ironic, sarcastic, scornful, derisive or ridiculing criticism of some vice, folly or abuse”, and does not call for any imitation or mimicry of the original work. The Palmer and Greenpeace cases provide helpful pointers in determining whether a fair dealing is for the purpose of parody or satire:

• The purpose of a fair dealing is determined objectively, with regard to the likely perception of the likely audience;

• The fair dealing does not have to be solely for the purpose of parody or satire – a dealing can have dual purposes, including a commercial purpose; and

• It is the copyright work itself (rather than separate works that accompany it) that must be dealt with for the purpose of parody or satire – in other words, the copyright work itself must be doing some of the (humorous) work.

In Greenpeace, campaign materials that reproduced AGL’s logo paired with the “Australia’s Greatest Liability” tagline were found to be “for the purpose of parody or satire”, while use of the same AGL logo paired with the words “Australia’s Biggest Climate Polluter” did not satisfy the requirements of the defence. Without the “Australia’s Greatest Liability” tagline, the AGL logo was found to serve no purpose in “telling the joke”, as in this instance there really was no joke (merely a criticism), which ultimately meant that the logo itself had not been dealt with “for the purpose of parody or satire”.

Similarly, in Palmer, the Court effectively found that changing the lyrics “We’re Not Gonna Take It” to “Aussies Not Gonna Cop It” was simply not humorous – the work itself was therefore “not used to satirise anyone or anything”, but instead merely to criticise Mr Palmer’s political opponents. While the Court found that one campaign advertisement deployed by Mr Palmer had arguably been satirical – namely an unflattering photograph of Barnaby Joyce accompanied by the caption “New Zealander of the Year” – the Court noted that the satirical element came solely from the photograph and its caption, rather than the musical work itself, which played no part in the overall comedic effect.

The cost of getting a fair dealing assessment wrong can be substantial. Mr Palmer was ultimately ordered to pay $1.5m in damages (including $1m in additional or ‘flagrancy’ damages). It remains to be seen how the Courts will interpret the proposed fair dealing defence here in New Zealand. However, it seems likely that the well-reasoned judgments in both Palmer and Greenpeace will offer substantial guidance in our approach.

Carter’s Bill has now been referred to the Social Services and Community Committee, whose report is due on 1 October 2026 prior to its second reading.