Opinion—Parody and satire bill would let us safely poke fun at the world

Lampooning politicians and making fun of the pretensions of artists, writers, and composers are important safety valves in a free society, writes Graeme Austin.

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.