King’s Counsel patent lawyer says Green Party’s Barbie political memes could breach copyright

One of the 'Barbie' memes posted to the Green Party Instagram.

A top patent lawyer says the Green Party could face serious consequences over their use of Barbie movie memes on their social media pages.

Clive Elliott KC, a past president of the Intellectual Property Society of Australia and New Zealand (Ipsanz), told the Herald unless political parties have a license from the creator of the content, they’re not entitled to use it.

“It doesn’t matter who created the work and it’s not a question of the quality of the work, it’s that if someone has created a work, they own the copyright in it and they’re entitled to control who actually uses it.”

A Green Party spokesperson confirmed the party hadn’t sought permission from Barbie’s studio Warner Bros. to “make memes”, but said it sometimes “remixes popular memes to communicate with the public, particularly young people”.

“Thousands of organisations around the world, including many in Aotearoa, find that the ‘meme’ format is a unique, fun and effective way to communicate online.”

Warner Bros. has been approached for comment.

A Barbie meme shared to the Green Party Instagram.

However, Elliott said regardless of whether the work is replicated elsewhere on social media, the same copyright laws apply.

“In some ways, social media reaches a much bigger audience so the harm would be greater. So I think you could argue that, you know, the fact that it’s on social media, it makes it worse, not better.”

While there are limited “fair use” defence grounds in New Zealand for organisations such as news publishers and broadcasters, he doesn’t believe the Barbie images used by the Greens would fall into this category.

The Greens, however, are not the only political party using potentially copyrighted material.

The Herald has also asked National about the use of what appear to be viral social media clips of cakes being cut with a knife below its MPs speaking about political issues.

A National Party spokesperson said the videos were a “common device” used on social media to draw and maintain the attention of the user.

“The content is a mixture of our own content and user-generated [content] widely used on social media. The politicians are being filmed in a candid conversation. More content from the videos is likely to be published soon.”

In June, National also removed several TikTok videos featuring content from movies and television shows shortly after film studios were alerted.

The deleted videos included material from Breaking Bad, Star Wars, The Office, Finding Nemo, The Batman and Cars.

A recent clip shared on the National Party Instagram.

Elliott said using popular content without permission was a similar tactic employed by former US President Donald Trump, who often used music without the artist or studio’s authorisation.

“There does seem to be a trend among some people who think that the law doesn’t apply to them.”

Elliott said those who republish work without permission could face serious consequences.

“Unless they’ve got a licence from the film studio,” Elliott explained when referencing the Green Party.

“I doubt [the studio] would have agreed to a political party using an image like that, and so I think they could be in difficulty if the studio took action.

“With the Eminem case, you know what happened there - they used just a part of a song, and the National Party got into big strife about that.”

In 2017, National was found to have breached copyright for using Eminem’s track Lose Yourself for a 2014 election ad and was initially told to pay $600,000 before it was reduced by the Court of Appeal to $225,000 in 2018.

Then-National campaign manager Steven Joyce famously said using the music was “pretty legal”.

Elliott, who is co-author of the LexisNexis loose-leaf texts: Copyright and Design; and Patents and Trade Marks, said it doesn’t matter where the work was created because international treaties mean the copyright laws still apply.

“The Berne treaty basically says that if someone in say Los Angeles created the Barbie image, they would be able to enforce their copyright in New Zealand because New Zealand recognises it as American copyright and vice versa. If someone in the US copied one of your works or one of my works, we would be able to take action in the US.”

Katie Harris is an Auckland-based journalist who covers social issues including sexual assault, workplace misconduct, crime and justice. She joined the Herald in 2020.