Opinion—Parody and satire bill would let us safely poke fun at the world
The bill was pulled out of the ballot late last week. It aims to allow comedians to use copyright protected material to poke fun at the world.
Lampooning our politicians, designing memes that hit the target, making fun of the pretensions of artists, writers, and composers—these are all important safety valves in a free society. The bill will create space to use copyright material for social commentary. It will promote freedom of expression and deserves support.
The bill would also bring our copyright laws more into line with Australia, which has had a parody and satire defence to copyright infringement since 2006. The European Union has a defence for “caricature, parody or pastiche”. And in 1994, the United States Supreme Court recognised that parody could be a kind of copyright fair use.
For New Zealand’s creative workers who want to distribute their outputs internationally, it is helpful for our laws to be in line with the approach in major media markets.
A copyright defence for parody and satire seems to be a popular idea for opposition MPs. Simeon Brown introduced a similar bill in 2018. This kind of amendment could be passed without waiting for more major—and long overdue—reform of New Zealand’s copyright laws.
Kahurangi Carter, the MP responsible for the 2024 version, has made some big promises for the bill. With its own attempt at humour, her press release was headed: “Green MP’s Meme-ber’s Bill set to save the world.”
Carter is right about “parody and satire playing a critical role in public discourse”. But she overpromises when she says that “big companies won’t be able to sue artists for being cool and funny”.
The bill won’t be a free pass for comedians and other social commentators to use copyright material without a licence. Copyright laws need to strike a balance between making space for comedy and social comment, while ensuring the owners of the original works get appropriate compensation when their works are used by others.
After all, copyright is itself an engine of free expression. It provides some important economic incentives for film makers, television companies, composers, novelists, and artists to create in the first place. Without those incentives there would be less creative work for the rest of us to enjoy. And comedians would have less material to draw on for their parodies and satires.
This is why overseas courts keep a tight rein on parody and satire defences and exceptions. The exceptions have not created a copyright free-for-all.
Courts typically want to see good reasons for using others’ copyright works without a licence. European courts typically want to see some kind of “dialogue” with the original work. Often this involves making fun of the work that has been taken—not just using others’ copyright material as a shortcut. For this reason, parody—which targets a particular work of authorship—gets an easier time under these defences than satire. Satire usually involves general social commentary, not necessarily critique of others’ copyright-protected works. With satire, the reasons for infringing others’ copyrights are not so clear. And in the US, the Supreme Court has said that the equivalent parody exception is not an excuse for avoiding the “drudgery” of doing original creative work. These defences are not tickets to free ride on others’ creative efforts.
Overseas, initiatives such as this bill have created some welcome freedom to operate for comedy and other social commentary. At the same time, many claims that uncompensated uses are parodies or satires have been rejected. Our courts are likely to follow the same approach.
Other problems with the bill are likely to come up as it advances. In its current form it does not appear to deal with audiovisual material—films, television, video clips. And some careful thinking is needed about the relationship between a parody and satire exception and mātauranga Māori. Do the same principles apply when the underlying work that is used for a parody or satire is a cultural taonga or treasure?
A copyright exception of this kind is long overdue—but it won’t save the world. And it certainly won’t protect all comedians from being sued.
This article is adapted from an article originally published on Newsroom. Graeme also discussed the proposed parody and satire exception on Radio New Zealand’s MediaWatch and the MediaWatch podcast on 29 November 2024.
Graeme recently joined forces with actress Jennifer Te Atamira Ward-Lealand to discuss the impacts of AI in the creative sector. This New Zealand Herald article points out the need for legislation to "protect performing artists from having their livelihoods digitally stripped away".
Professor Graeme Austin is the Chair of Private Law at Te Herenga Waka's Faculty of Law.
Te Kauhanganui Tātai Ture: Finding purpose through a shared community
This year, as always, my brilliant colleagues have produced world-leading research, taught over 2000 extraordinary students, and engaged widely to make Aotearoa and the world a better place. I know of no law school with fewer than 30 academic staff and as many students that manages such excellent teaching and research. Our equally amazing professional staff have done an extraordinary job in not just keeping things working but also making students’ lives just a little easier.
Our students are our future, and I tell them they are better versions of us—in some of the tough times this year, it is they who have helped us get through. I am constantly amazed at what our students get up to after they leave here, and just sometimes I like to claim a little bit of the credit that properly belongs to you!
But Tātai Ture is not just made up of those lucky enough to work or study here in the Old Government Buildings (OGB)—it is made up of all of you, wherever and whenever you get to read this.
We have decided to do V.Alum a bit differently so we can tell stories from within and from outside OGB. Please take a few minutes to read about our wonderful research, student leaders, and the achievements of some of our alumni.
The last couple of years have been unsettled for Te Herenga Waka, and I suspect that the next couple will be challenging for all our universities. The Law Faculty, however, has continued to be a thriving part of a university that is beginning to flourish again. We have five new academic staff who either have just started with us or will soon be here for us to nurture—emerging scholars in international trade, intellectual property, and comparative constitutional law; a leading mergers and acquisitions scholar from the US; and a new Professor of Public Health.
I am still getting used to working in the Dean’s office. Being Dean of the faculty that I have worked in for 30 years is a privilege and an honour but also, to be honest, a bit daunting. I have been amazed by all the goodwill and offers of help that I have received. I genuinely believe that despite the challenges 2025 will bring, we really can build an even better law school for our community. Priorities for next year include emphasising our links with the main University, joining with our friends across Bunny Street in Wellington School of Business and Government to create a unique Pipitea experience at the heart of our capital, emphasising the ‘place-based’ experience of learning law at VUW, and working to raise Pasifika achievement. Next year also is the first year of the new integrated tikanga curriculum that all students will study—we can’t wait to get started.
If we can do all this, it will be in no small part due to the tireless work of my predecessor, Lee Godden, who worked harder than any person I have ever known at the Law School. Lee had to return to Australia in August to care for whānau, but not before she had secured the funding for our new appointments.
It is summer, at least for those in Aotearoa. Just before Christmas, I will be in one of my happy places, Fiordland, walking the Kepler Track with my best man (whom I met in second-year law) and his family. On my to-do list are reading all the books that I missed out on during the year, fighting the ivy in our garden, and mostly just sitting in the sun—which is guaranteed this Wellington summer. I hope to finally make it in February to the top of Angelus Peak in Nelson Lakes. I also plan to catch up on some of my colleagues’ excellent research (really truly!)—you should too! Pick something from the list—it is all great.
One book I’m currently learning a lot from is Zest, written by my old torts student Daniel Kalderimis KC, who courageously writes about his recovery from depression, with the help of not only psychology but also philosophy. Daniel’s book is not so much about how to do law but is a lot about how we should choose to be more purposeful in those things that give us meaning. Daniel reminds me, though, that law is all about the narratives that connect people. Outside my family and friends, it has also been this university and our shared law community that have given me a sense of purpose and meaning. So I can’t wait for 2025.
Whiti te rā
Geoff