Brand-jamming, free speech and satire: Federal Court finds Greenpeace’s use of AGL’s logo is (mostly) fair and darkly humorous

Companies protect their logos in a range of ways, including by registering trade marks (allowing the registered owner the exclusive right to use a logo in relation to certain goods or services) and relying on copyright law.

After releasing a highly critical report earlier in the year, Greenpeace “brand-jammed” AGL by using the AGL logo in a series of advertisements featuring the tagline “Australia’s Greatest Liability”. AGL took action, suing Greenpeace for copyright and trade mark infringement. In relation to most of the activities in the Greenpeace campaign, the Federal Court held that Greenpeace did not infringe AGL’s copyright in its logo (because Greenpeace’s use of the AGL logo was a fair dealing for the purpose of parody or satire under section 41A of the Copyright Act 1968 (Cth) and also did not infringe AGL’s trade marks. The decision in AGL Energy Limited v Greenpeace Australia Pacific Limited [2021] FCA 625 illustrates the limitations in seeking to deploy copyright law in order to protect a copyright owner’s reputation.

Greenpeace’s brand-jamming campaign

Greenpeace Australia Pacific is the Australian arm of an environmental campaigning organisation; AGL Energy Ltd provides electricity, gas and other services.

In May this year, Greenpeace launched a media campaign, drawing attention to matters raised in a report commissioned by Greenpeace which was highly critical of AGL’s environmental record. The media campaign used a modified version of AGL’s logo and taglines including “Still Australia’s Biggest Climate Polluter” and “Generating Pollution for Generations” along with the words “Australia’s Greatest Liability” (a play on the letters in AGL’s corporate name and brand).

Greenpeace’s campaign was an example of what is described as “brand-jamming”. Brand-jamming is a marketing technique that attempts to change the behaviour of companies by creating “fake” advertisements. It has been used by Greenpeace previously in campaigns against Coca-Cola and the Commonwealth Bank of Australia.

Each element of Greenpeace’s media campaign prominently featured a modified version of AGL’s logo. Some of the elements of the campaign were:

• Online banner advertisements including the words “Australia’s Greatest Liability” followed by the words “Still Australia’s Biggest Climate Polluter” with a website link to www.australiasgreatestliability.com.
• Street posters in Melbourne and Sydney, featuring a young person in a mask and googles walking a dog, in monochrome orange (conjuring up the sense of a polluted sky), with the headline “Still Australia’s Biggest Climate Polluter”.

The online banner advertisement and street posters are shown below.

AGL issued proceedings against Greenpeace alleging both trade mark and copyright infringement and sought declarations, injunctions, compensatory damages and additional damages.

Greenpeace admitted to using a modified version of AGL’s logo, but argued that:

• In relation to the copyright infringement claim, its conduct fell within the scope of various defences to copyright infringement, most notably that its actions were a fair dealing for the purpose of either parody or satire, or criticism or review.
• In relation to the trade mark infringement claim, while it had used a modified version of AGL’s logo (and that this was substantially identical to AGL’s registered trade marks), it did not infringe the trade marks because it had not used the logo “as a trade mark” as required for a successful trademark infringement action.

Fair dealing for the purpose of parody or satire

The parody or satire defence was introduced in 2006 to (as the then Minister for Justice and Customs said at the time) “ensure that Australia’s fine tradition of poking fun at itself and others will not be unnecessarily restricted”. The then Attorney-General described the purpose in a perhaps more confined way as being designed to permit “our comedians and cartoonists to use copyright material for the purposes of parody or satire”. The idea of providing a defence for environmental brand – jamming campaigns was probably not front-of-mind!

To establish the defence, Greenpeace was required to show that its use of AGL’s logo was both:

• a fair dealing; and
• for the purpose of parody or satire.

“Parody” and “satire” are not defined in Copyright Act and the Court referred to earlier authorities and dictionary definitions of both words, noting that there is overlap between the two. The Court found that use may be for the purpose of parody or satire if it is designed “to expose, denounce or deride vice”, and that this is often in context of a humorous or ridiculous juxtaposition. In this case, the Court noted that for the defence to apply, the parody or satire does not need to be directed to the artistic work itself (for example, the allegedly infringing work does not need to be a parody of the logo itself), suggesting that the parody or satire may also be directed to "its owners or creator's conduct". The Court referred to earlier authorities, to the effect that the defence cannot be used "as a shield to avoid intellectual work in order to benefit from the notoriety of the parodied (or satirised) work", and that there is an "important line" separating a parody from appropriation solely to "cash in on its originality and popularity".

In determining whether the defence applied, the Court held that that it is appropriate to consider the "likely perception of the person who will be seeing the impugned work" – noting that, in this case, the audience is likely to be familiar with both AGL and Greenpeace.

The Court found that many of Greenpeace’s uses of AGL’s logo were for the purpose of parody or satire. This included the online banner advertisements, the street posters, the parody website and some of the social media uses. Key to the Court’s findings were:

• The “Australia’s Greatest Liability” tagline, a deliberate play on the initials in AGL’s name, accompanied by phrases such as “Still Australia’s Biggest Climate Polluter” or “Generating Pollution for Generations”.
• The overall look of the media campaign, which mimicked elements of AGL’s brand guidelines, and created a “corporate look”. The Court found that this juxtaposition created an “incongruity that is striking to the viewer” and the “ridicule potent in the message is likely to be immediately perceived”.
• The image of the young person wearing a mask together with the AGL logo was “darkly humorous”, because its combined effect is “ridiculous”. Greenpeace had exposed AGL to ridicule by using AGL’s logo to convey a message that AGL would not wish to send.
• The words “Presented by Greenpeace” were positioned closed to AGL’s logo, and anyone reading the campaign materials would understand that AGL is not the author of the message, and that the message came from Greenpeace.

However, Greenpeace was not successful in establishing the parody or satire defence for some of its campaign materials, including some social media usage of the logo and photographs of placards that did not adopt the same tagline (“Australia’s Greatest Liability”) as used in the other campaign materials. Greenpeace was ordered to refrain from using those social media posts and placards.

In order to establish the parody or satire defence, Greenpeace also needed to establish that its use of AGL’s logo was “a fair dealing”.

AGL argued, with some force, that the use of the AGL logo by Greenpeace was not fair. AGL pointed out that Greenpeace could have used its initials as a means of identifying AGL as the target of the campaign, and did not need to use the AGL logo. In AGL’s submission, the choice to use the AGL logo – for the express purpose (as described in Greenpeace’s brief to its advertising agency) of making the AGL logo “toxic” – was unnecessary, opportunistic and unfair.

The Court found that, “although cutting and holding the conduct of AGL up to scorn or ridicule”, a fair minded viewer would find that Greenpeace’s uses amounted to a fair dealing having regard to the following:

• Purpose and character of the dealing. This was found to be parodic or satirical. Greenpeace’s intention was to draw public attention to what it alleges is AGL’s greenwashing of its conduct and the aim of Greenpeace’s campaign was to promote change at AGL. The Court rejected AGL’s submission that there was no need for Greenpeace to use AGL’s logo and confirmed that while copyright protects the owner’s interest in an artistic work, “it does not provide a mechanism for protecting the copyright owner’s reputation”. Greenpeace’s clear statement of authorship (use of “by Greenpeace”), lack of ulterior motive and the fact that it did not have a commercial purpose were relevant to the Court’s assessment of the purpose and character of Greenpeace’s dealing.
• Nature of the copyright work. The Court found that Greenpeace’s use of the whole of the AGL logo was not decisive, because the AGL logo is a simple artistic work of two parts (the letters AGL and five radiating lines) and was not “readily susceptible of division”.
• Possibility of obtaining a licence. The Court found that it was unlikely that Greenpeace would have been able to obtain a licence to use AGL’s corporate logo in circumstances where Greenpeace was holding up AGL for ridicule or scorn.
• Effect of the dealing upon the potential market for or value of the work. The Court noted that this was unlikely to be relevant in the context of parody or satire and that some adverse effect may be expected from parody or satire. It was relevant that Greenpeace is not a commercial organisation and does not compete with AGL. Further the Court noted that it is not the use of the AGL corporate logo that itself causes damage, but rather the information conveyed by Greenpeace as part of its campaign.

Fair dealing for the purpose of criticism or review

Having found that much of Greenpeace’s campaign material fell within the fair dealing defence, and due to the urgency of the proceedings, the Court only considered the defence of fair dealing for the purpose of criticism or review for the campaign material which was not protected by the parody or satire defence. The Court found that the criticism or review defence did not apply to that campaign material either, in part because the material did not rise above “protest statements” that are critical of AGL as a company and would not be understood to represent criticism or review, “whether of the AGL logo or any other work”.

Did Greenpeace’s use of the AGL logo infringe AGL’s registered trade marks?

AGL argued that Greenpeace’s use of a logo which was “substantially identical” to its Australian registered trade marks amounted to trade mark infringement. The Court rejected this argument. For trade mark infringement to be found, the alleged infringer must not only use a trade mark that is substantially identical or deceptively similar to the registered trade mark, but it must also use that mark as “as a trade mark”. The Court found that, rather than being use “as a trade mark”, Greenpeace’s use was to identify AGL as the subject of criticism and that consumers would not perceive Greenpeace to be promoting or associating any goods or services by reference to that mark.

Lessons learned for protecting your brand portfolio

• Despite the decision in this case, copyright remains a powerful tool to protect logos and other branding from unauthorised use. Although Greenpeace was (mostly) successful in this case, most cases of unauthorised use of corporate logos would not fall within the scope of the fair dealing for parody or satire defence.
• In particular, it would be difficult for a competitor to try to rely on this defence in relation to a campaign that used its competitor's copyright work, even in a humorous way. This could easily cross the line between parody and cashing in on the originality of a competitor's branding.
• As seen by the mixed result in this case (with some of Greenpeace's uses of AGL's logo not falling within the scope of the defence), whether or not an otherwise infringing use of a copyright work will fall within the scope of the defence is often not clear, and legal advice should be sought.