here’s what the law says
- Written by Sarah Hook, Senior Lecturer in Law, Western Sydney University
Rachel Gunn, aka Raygun, is no stranger to controversy. In August the university lecturer went viral for her quirky, marsupial-inspired breakdancing at the Olympics.
Over the weekend, Gunn was back in the spotlight. Raygun: The Musical, a “parody exploration” of Gunn’s journey to the Paris Olympics from Australian comedian Steph Broadbridge, was cancelled due to a legal complaint from Gunn and her lawyers.
A statement from Gunn’s legal and management team cited “misuse of intellectual property” and the need to protect Raygun’s brand.
The law is clear, Gunn is unlikely to be able to enforce intellectual property over her name, her persona, and her dance moves, and there are exceptions and rights for Australians to parody without it being infringement. But does this matter if legal threats are enough to stop artists from taking risks?
Does Raygun own her name?
In Australia we have both copyright – protecting literary, artistic, dramatic and musical works – and trademarks – protecting signs used as badges of origin for a brand.
In Australia, it is generally accepted you cannot copyright short titles, slogans, single words and names, but you can protect names as trademarks when used as brands for specific classes of goods or services.
This means even invented names like “Exxon” cannot be protected by copyright, but it can be a trademark for the oil and gas giant.
While “Raygun” is a clever play on words, it does not qualify for copyright protection. Using it in the title of a production like “Raygun: The Musical” is not copyright infringement.
In August, Gunn applied to register “Raygun” as a trademark for various classes including entertainment and clothing. She has others awaiting examination: one for her in silhouette kangaroo hop and another for the photograph of the same. Once these are accepted and not successfully opposed, they will be registered as trademarks.
Trademarks are personal property that confer powerful rights to protect the goodwill of the business in which the mark is used.
Under the Trade Marks Act, Gunn could enforce her rights against people also using Raygun (or similar) as a trademark in relation to their own entertainment or clothing businesses, for example when selling clothing, or if using the mark as the brand of a movie company.
This definition of infringement can make enforcement against parodies difficult. For example, in a case where Greenpeace used AGL’s logo in a campaign against climate pollution, the court ruled Greenpeace’s parodic use of the logo didn’t amount to Greenpeace using AGL’s logo as their brand.
Similarly, unless a parody uses Gunn’s trademarks as a trademark, rather than as the subject matter, an infringement claim would likely fail.
Does Raygun own her persona?
In Australia, there is no right of publicity, meaning a person’s likeness and name are open for others to use, adapt and parody. Broadbridge can call a character in her musical Raygun.
In the statement from Gunn’s legal and management team, they said the use of the name Raygun “by a comedian without approval has caused confusion among the public”.
As parodies involve mockery, it would be difficult to establish the legal standard that the public were confused that she endorsed the musical.
Does Raygun own her dance moves?
The general concept of a dance, a dance style and individual dance moves are not protected by copyright.
However, choreography can be protected as a dramatic work under the Copyright Act when it is original and has been documented, such as being recorded in a video. Copyright arises automatically when these criteria are met.
Choreography can be copyrighted, but individual dance moves cannot.
AAP Image/Dan Himbrechts
Copyright owners of dance choreography have exclusive rights, including the right to reproduce the work in a material form (such as a recording) and to perform the work in public.
Broadbridge was allegedly told she couldn’t do the kangaroo dance. For infringement to be proven, the musical would need to replicate Gunn’s exact choreography or a substantial part of it.
Even then, the fair dealing defence for parody or satire could apply if the use was fair and for parody. This defence would likely succeed, as it involves imitating an earlier work with humour or mockery.
Stifling free expression?
Intellectual property law encourages creation and compensates creators. Most jurisdictions, including Australia, have complex rules and exceptions.
Nevertheless, there is a risk that cease and desist demands that overlook credible defences can stifle creativity.
In Australia, there is no standalone right to parody, and so an infringement notice can be levied – even in cases where parody or satire can be a defence. This means comedians such as Broadbridge are on the back foot and have to defend their parody when receiving a legal threat. If they don’t have capacity to fight, they have to give up the right rather than bear the costs of litigation.
It is not surprising that legal threats can have a chilling effect on creativity and lead to self-censorship.
As Broadbridge told 7 News:
I don’t know how it will be for creativity if I will have lawyers breathing down my neck telling me what I can and can’t say on stage.
Satire, humour and parody are hallmarks of Australian culture. If a parody causes “serious harm” to reputation, defamation law can intervene. But using IP law to censor creativity harms us all.
Italy has a “fair balance approach”: instead of treating parody as a defence, a parody of a work is considered beyond the scope of copyright enforcement, as it is not viewed as a derivative work.
Australia is unlikely to adopt such a stance, but steps need to be taken to ensure the entertainment industry is more comfortable to support parodies, even when threatened with litigation.
Without anyone game enough to defend parodies in the courts the Australian larrikin sense of humour Gunn herself exhibited at the Olympics may be too risky to exhibit.
Authors: Sarah Hook, Senior Lecturer in Law, Western Sydney University
