A say day for satire in the Federal Court

Published Opinion pages, The Age and Sydney Morning Herald, May, 2002

A serious miscarriage of humour was upheld by the full bench of the Federal Court of Australia last week.


In a copyright wrangle over the use of television footage, the full court ruled, amongst other things, that satire alone did not constitute a form of criticism, review or news reportage.


Aristophanes, Juvenal, Chaucer and Moliere would be turning in their graves. Barry Humphries, Clive James and John Clarke are not likely to be impressed either.


The court's frightening conclusion issues restrictions to comedians around Australia.   But perhaps a worse outcome of the ruling is that it may force  the electronic media to take current affairs even more seriously.


The case concerned a dust up over the usage of Nine footage by Ten's satirical current affairs show, The Panel. The Panel re-broadcast a number of pieces of Nine footage and made fun of the subjects, without paying for the footage.


The copyright act allows one to use footage, or reproduce works, for the purposes of making a news story, or for the purposes of criticism or review.


Much time was spent in court debating what constituted a serious news treatment and what was merely "poking fun".


Justice Finkelstein argued in classic deadpan that John Howard singing Happy Birthday to Donald Bradman on the "Midday" show was newsworthy. "An incident where the Prime Minister of a country has behaved in a way which some might call "silly" is certainly newsworthy", Finkelstein declared.


Finkelstein's argument implies that an average person on the street acting silly would not be defensible.   


The discussion of the merits of particular Panel segments relied upon the making of a distinction between news and entertainment.  A singing Prime Minister was considered newsworthy. Silly disguises used by anonymous interviewees were ruled to be entertainment alone.


The court's assessment of other segments from "The Panel"  hinged on the notion that making fun was not fair dealing unless there was also an element of serious, and "recognisable", criticism.


In other words, the court somehow managed to rule that it is no defense to make fun of something unless you also take it seriously.


Some would argue that in the case of John Howard singing this was actually impossible.


Satire -  having a lend -  is an Australian institution. It saves us from political correctness. It saves us from being defined. It saves us from the tyranny of the establishment, which is often the tyranny of the serious. The right to razz ought to be preserved in the constitution, let alone the common law.


Michael Hirsh, co-executive producer of The Panel, said, "Just because something is funny doesn't make it less newsworthy… I would argue that you are laughing at it because you are reviewing it." And this is the point. Satire, or poking fun, is not just a form of review, but one of the oldest and finest forms of review. 


Ten's counsel should have argued that the whole problem here was that Nine couldn't take a joke.


Peter Meakin, director of news and current affairs at Channel Nine, said, "Even humour has its parameters." Meakin also said he hoped the decision wasn't discriminatory against satire.  "If they want to change the law to make provision for satire alone, that would probably suit us all."


Channel Ten would not comment while they digest the findings but are considering an appeal.


An absurd outcome of the federal court decision is that it may now be safer and cheaper to produce serious current affairs programs than funny current affair programs.


Michael Hirsh, co executive producer of The Panel, for Working Dog Productions, was defiant. He said the court decision would not affect them either using footage, making fun of it, or poking fun at other stations.  "We will wear this (judgement) as a badge of honour which proves we are doing our job," he said.


But the fact is that members of The Panel will have to consider fair and critical dealing while they are forming their jokes. [if cut] Documentaries and sports programs that use footage from other networks may be more affected.  


Channel Nine wants to argue that sports shows like Sports Tonight and Sportswatch, which rely more heavily on borrowed footage, are also not news programs. This argument has yet to be proven. The only genre of program deemed indefensible by the court to date is satire or "poking fun". [end if cut]


Nine has arguably shot itself in the foot. This ruling cannot  be good for ratings. Hirsh said  it may restrict all stations, including Nine, from creating programs easily from one another's footage.


It may also make it harder for TV shows to satirise other shows. This in turn means the media may be forced to take itself seriously. This is not good for ratings (or circulation) either.


The media, especially the print media, is arguably already burdened by seriousness. It is satire that gives radio breakfast shows their popularity.


I once asked the comedian, Glynn Nicholas, why he thought people liked comedians more than politicians. His response was deadpan:  "Because they're more interesting."


The law, it seems,  would have the media treat all subjects in the way that lawyers do - seriously and critically.


This is not an especially surprising ruling to come from an institution which excels in taking itself seriously. You're not allowed to make fun of the law. You'll pay if you do, mate.


 Which is why lawyers make particularly good comedy subjects.


John Cleese once said that humans were funniest when they took themselves most seriously. By his reasoning, judges are perhaps the best comedians in the country.


Which is no doubt why they felt qualified to limit the use of satire.

© Copyright Andrew Bock 2010. All rights protected.