Over the weekend it was reported that Sydney comedian Steph Broadbridge had cancelled her show, Raygun: The Musical, just hours before it was set to debut, following legal threats from representatives of Olympic breakdancer Dr Rachael Gunn. The legal team for the Australian breakdancer, who went spectacularly viral after losing all three of her battles at the Paris Olympics, reportedly contacted the venue claiming Broadbridge was “damaging” the Raygun brand and that Gunn “owns the kangaroo dance”.
So, does Raygun have a leg to stand on? Crikey clarifies.
Isn’t satire exempt from this kind of stuff?
As Professor Isabella Alexander from the University of Technology Sydney told Crikey, “you can have copyright in a choreographic work, so the choreographer would own that copyright.”
But she added there is an exception in the Copyright Act for parody and satire.
“Broadbridge, she wants to do a parody show … that should be allowed under our copyright act, because we have a defence or an exception to copyright infringement, which is fair dealing for the purposes of parody or satire,” Alexander said.
“There’s an exception set up for just this kind of thing — so that you can’t stop people from making parodies or satires. So I query whether the musical should have folded so quickly, because they have a defence.”
Anthony Skinner, who heads the company promoting Broadbridge’s show, told the ABC an offer to remove “infringing properties” was not accepted by Raygun’s representatives.
What about Raygun’s reputation?
While section 41A of the Copyright Act provides an exception for parody and satire, section 195AK entitles artists to a right against “derogatory treatment”.
“Authors also have the right to object to derogatory treatment of their works,” Alexander said. “So anything that is kind of prejudicial to the honour or reputation of a work … kind of mutilating it, altering it. So if Broadbridge was to do kind of a version of the dance that brought Raygun’s reputation into disrepute or offended her sense of honour, then that could be a moral right infringement.”
“There is an exception to a moral right infringement if the use is reasonable, and a lot of people would argue that a parody is a reasonable use, because otherwise how would you have an exception for copyright infringement in the act?”
Does the law care about your ‘brand’ being damaged?
During Broadbridge’s deadpan announcement that her show had been cancelled, she said of the suggestion that her parody could damage the Raygun brand: “I would never do… she doesn’t need me to do that.”
But Alexander told Crikey that, for copyright purposes, “honour” was slightly different to the legal concept of reputation as it often applies in cases such as defamation.
“There’s an argument that you couldn’t make it worse in a way that would affect [Raygun’s] reputation … honour is a lot more subjective, so it’s a lot to do with how an artist views themselves. So I think [Raygun] would be a lot more successful in arguing that the parody dance affects her honour, as a serious breakdancer.”
What about the suggestion Raygun authorised the work?
Alexander said the reported claim that audiences might think Raygun had authorised the musical was “spurious”.
“Why would you be associated with a parody of yourself?”
“For a parody to work … you have to know what it is you’re laughing at,” she said. “Also, the musical could easily do a disclaimer. They just call it the ‘unauthorised musical’”.
What trademarks has Raygun applied for?
Gunn applied for a trademark on the word “Raygun” in August, and while in October it was subject to an adverse examination report (an assessment by the regulator that identifies issues with a trademark application), Alexander said that wasn’t necessarily fatal and may well have been caused by something as minor as a clerical error.
Gunn also successfully applied for trademarks on silhouettes of her posing as a kangaroo while dancing.
What’s the difference between copyright and trademarks?
Alexander distinguished between copyright and trademark infringement, explaining: “Trademarks are like logos and brand names, you register them, and then you have to use them in the course of trade.”
“You have to have them actually attached to goods or services.”
Crikey asked Raygun what her representatives made of the exceptions in the Copyright Act for parody and satire, whether she claimed to hold ownership of the kangaroo dance move, and whether there were any acceptable forms of satire and parody of her Olympic performance. She did not respond.
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