When greenwashing can't hide the fossil stains

Company logo despoiled by climateers ... Upheld in the name of satire ... Clive Palmer didn't help ... Phil Ruddock's shield of satire saved the greenies ... Anna Kretowicz looks at how the Federal Court came to grips with parody 

There have been widespread cheers for the Federal Court's decision to uphold satire and the spirit of poking fun at corporations. 

So it was that "Australia's dirtiest company" was caught green-handed, with Justice Stephen Burley refusing to find that most elements of Greenpeace Australia's anti-AGL campaign did not infringe on the gaseous copyright or trademark rights over its sacred logo.

In May 2021, Greenpeace launched a punny campaign against energy giant AGL, based on its report, "Coal-faced: Exposing AGL as Australia's biggest climate polluter". 

Greenpeace didn't mince words, calling AGL a "hero for fossil fuels" and a "reckless and unreliable operator". The report sought to air AGL's coal-stained laundry, calling it out for "greenwashing". 

Even though AGL was Australia's largest contributor to greenhouse gas emissions in 2019-20, the corporate spinners regularly sell the company as environmentally-conscious. 

Greenpeace's campaign brief to the marketing company instructed that nothing would be "too wild", and that the more "cheeky" and "innovative" the pitch, the better. Its objective: to "win over [AGL's] C-Suite or Board" and convince mahogany row to retire its coal-powered stations by 2030.

And cheeky it was. 

The pièce de résistance was a modified AGL logo, consisting of the company graphic placed jauntily alongside the text, "Australia's Greatest Liability" (AGL, geddit?). 

This was used across online banners, street posters in Sydney and Melbourne, a website, social media posts, and placards used by protestors. 

Headlines included "Still Australia's Biggest Climate Polluter" and "Generating Pollution for Generations" - just in case the message wasn't clear enough.

AGL took "umbrage" with Greenpeace's use of its graphic, and within two days of the campaign being launched rushed to court. Australia's Greatest Litigator, perhaps? 

Greenpeace protest against AGL outside the Federal Court 

It wanted declarations of infringement of copyright and trademark rights, injunctions to restrain Greenpeace's use of the logo, and damages (including additional damages).

Greenpeace accepted that AGL had copyright in the logo, and that it was a validly registered trademark, yet infringement was denied. 

HH found the majority of uses were defensible, and the unlikely hero that Greenpeace have to thank is none other than Philip Ruddock.

Taking a trip down Legislative History Lane, in 2006 Fabulous Phil introduced the defence of fair dealing for the purpose of parody or satire to the Copyright Act (section 41A), saying it was to facilitate Australia's "fine tradition of satire". 

And Phil was a very satirical sort of dude. He also had the hot idea in 2004 of reforming defamation law to protect the dead from being defamed.

On the element of "parody or satire", Justice Burley found that the modified logo was "darkly humorous" and "the ridicule potent in the message [was] likely to be immediately perceived ..."  

His Honour has a keen love for music, and it seems he appreciates graphic design as well. 

The sort of satire inspired by Fabulous Phil

AGL sought to rely on the recent copyright battle between Clive Palmer and Universal Music, over the United Australia Party's re-working of We're Not Gonna Take It into Aussies Not Gonna Take It for his 2019 federal election campaign.

But Burley dismissed it as a "far cry" from the present case , which is unsurprising as not only did Palmer assert that We're Not Going to Take It resembled the Christmas carol O Come All Ye Faithful so Universal had no legal rights in it, but he was such an unreliable witness that it would have been "dangerous to rely on his word".

Significantly, there was nothing satirical about Palmer's campaign ads. Perhaps his "aggressive" and "defiant" videos slamming the NBN could have done with some cheeky marketing treatment.

On the aspect of "fair dealing", it was entirely consistent for Greenpeace's campaign to have that other purpose of intending to "[spark] public debate about the important issue of climate change".

So winning over AGL's C-Suite looked positively saintly compared to Palmer, who was "merely capitalising on the notoriety or popularity of [the song]" to advance his personal and political agenda.

Greenpeace successfully raised the shield of satire to protect its campaign, save a few social media posts and protestor placards (where the alternatively argued defence of fair dealing for the purpose of criticism or review failed, too).

As for the trademark claim, it "fail[ed] at the first hurdle" and there was no basis for any additional damages, making the case A Grand Loss. 

AGL's latest trick is to demerge its business, sending the coal burners at Bayswater and Loy Yang to an associated entity called Accel Energy, while Australia's Greatest Liability keeps the retail operations.

Greenpeace described this as "putting green lipstick on a pig". 

AGL Energy Limited v Greenpeace Australia Pacific Limited [2021] FCA 625