Hi there. Intellectual property (IP) refers to new or original creations such as inventions, words, phrases, symbols, logos, designs and ideas. The law recognises that intellectual property is a valuable asset, so the law gives IP creators or owners the right to protect and enforce their legal rights against third parties who use their IP without authorisation. You need to be careful that your business operations do not infringe the intellectual property rights of others. There are two types of IP that you need to be aware of: copyright and trade marks.

Copyright

Copyright is the legal protection afforded to the original expression of ideas and usually applies to art, literature, music, films, etc. A Star Wars film, for example, will be copyrighted and the copyright will be owned by the creator – usually the production company. As a general rule, copyrighted material cannot be used by another party without the creator’s authorisation, typically via a paid licensing arrangement.

However, under Australian copyright law, you can use copyrighted material for the purposes of parody or satire if the use is 'fair'. When determining whether there has been fair use or fair dealing, the law will take into account the purpose and character of the use (e.g. non-profit purposes are favoured over commercial purposes), the nature of the copyrighted work, the amount that is used, and the potential effect on the original copyrighted work's market value. These main factors will be considered together, along with any other relevant circumstances.

It can be difficult to know for certain whether there has been fair use, but there are general trends. The use is likely to be fair if you have used a minimal amount of copyright material necessary to make the parodic or satirical point. The minimal amount necessary could be the entire source material for some products, but it would cease to be fair use if those products were sold or widely distributed. Ultimately, if your products could become a market substitute for the products of the original copyright owners, then it is unlikely to be fair use and the parody or satire exception will not apply.

Trade marks

The second type of IP you need to be aware of is trade marks. A trade mark is a right that is granted over a word, phrase, letter, shape, logo or picture used to represent the products or services of a business. It is used to distinguish a business from its competitors. A registered trade mark gives the business exclusive rights to use the trade marks in Australia for commercial purposes, sell the rights to the trade mark to another business, and protect the trade mark if others try to use it.

Trade marks are an integral part of pop culture. If your business intends to use popular words, phrases or logos that are trade marks registered by another business, then you run the risk of infringing the intellectual property rights of that business. If this occurs, the other business could take legal action against you to stop the continued use of the trade mark and/or pay compensation for any loss that business had suffered as a result.

Note that the above information only relates to Australian law, and does not consider the law of another jurisdiction, such as the United States, where many films are produced and many iconic pop culture products originate.

Suggested way forward

IP infringement can pose a significant risk to your business. You can find more information about copyright from the Australian Copyright Council (www.copyright.org.au) and trade marks at IP Australia (www.ipaustralia.gov.au). As this is a complicated matter, you should consider speaking to an IP lawyer who can fully advise you of your legal rights and the best way to protect your commercial interests. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.