Small Business

The legality of selling parody products

A quick walk through one of Melbourne’s many popular markets and you’ll likely spot parody or satirical product making a reference to pop-culture. 

Is it legal to create and sell products which make these sorts of references? Does a business require permission from the copyright owner?

Copyright is the legal protection afforded to the original expression of ideas and usually applies to art, literature, music and films. 

According to the LawAdvisor legal research team and copyrighted material cannot be used by another party without the creator’s authorisation, usually through a paid licensing arrangement.

“However, under Australian copyright law, you can use copyrighted material for the purposes of parody or satire if the use is ‘fair’,” the LawAdvisor legal research team says.

“When determining there has been fair use or fair dealing, the law will take into account the purpose and character of the use (e.g non-profit purposes are favoured over commercial purposes), the nature of the copyrighted work, the amount that is used, and the potential effect on the original copyrighted work’s market value.

“These main factors will be considered together, along with any other relevant circumstances.”

While it can be difficult to know for certain whether or not there has been fair use, there are some general trends, the research team says.

“The use is likely to be fair if you have used a minimal amount of copyright material necessary to make the parodic or satirical point.

“The minimum amount necessary could be the entire source material for some products, but it would cease to be fair if those products were sold or widely distributed.

“Ultimately, if your products could become a market substitute for the products of the original copyright owners, then it is unlikely to be fair use and the parody or satire exception will not apply.”

The second type of intellectual property which comes into consideration is trade marks. 

A trade mark is a right that is granted over a word, phrase, letter, shape, logo or picture used to represent the products or services of a business. 

In Australia, a registered trade mark gives the business exclusive rights to use the trade marks for commercial purposes, sell the rights to the trade mark to another business, and protect it should others try to use it.

“Trade marks are an integral part of pop culture,” the LawAdvisor legal research team says.

“If your business intends to use popular words, phrases or logos that are trade marks registered by another business, then you run the risk of infringing the intellectual property rights of that business.

“If this occurs, the other business could take legal action against you to stop the continued use of the trade mark and or pay compensation for any loss that business has suffered as a result.”

Note the above information does not consider the law of another jurisdiction, such as the United States, where many films and iconic pop culture products originate.