It is reported that Rachael Gunn (better known as ‘Raygun’) who represented Australia in Break Dancing at this year’s Olympics in Paris has sent a letter of demand to Steph Broadbridge alleging potential infringements of her unregistered trade marks and copyright should Ms Broadbridge perform her musical ‘Raygun: The Musical’.

Raygun’s lawyers requested Ms Broadbridge not use the term ‘Raygun’ or Raygun’s “kangaroo dance” as both were claimed as Ms Gunn’s intellectual property.

A trial performance of the parody musical was reported to occur last Saturday with revenue derived from ticket sales of family and friends going to the Women’s & Girls’ Emergency Centre in Sydney.

While no claim was filed, Gunn’s lawyers were reportedly poised to lodge urgent action restricting performance of the musical.

Can copyright subsist in the dance and could Ms Broadbridge infringe this copyright?

Copyright subsists in original literary, dramatic, artistic and musical works, and does not require registration to be enforced. While copyright may subsist in a choreographic work (as a dramatic work) it needs to be translated into a material form and must also be original.

To infringe, Ms Broadbridge would need to take a ‘substantial part’ of the original choreographic work. It is unknown whether Ms Broadbridge’s musical would meet this test.

However, even if Ms Broadbridge has taken a substantial part, she may be able to rely on the defence of ‘fair use’ on the basis of satire/parody. This defence to copyright infringement exists in Australia so as to protect comedians and satirists for making light of copyright works.

With that said, authors of copyright works also have a right to not have their honour and reputation prejudiced by the unreasonable use (or misuse) of their copyrighted works to which the above defence would not apply. If Ms Broadbridge had so infringed this right, then Ms Gunn may have an actionable claim against use of the kangaroo dance should copyright subsist in it.

Can the name ‘Raygun’ receive registered trade mark protection and has this been infringed?

Registered trade mark protection allows the owner of the registration to prevent others from using that mark as a ‘badge of origin’. When a trader applies for trade mark registration, it must nominate which goods and/or services it intends to apply it to.

Ms Gunn filed four trade mark applications for the word ‘RAYGUN’ and a silhouette of her performing her kangaroo dance in August this year, following the Olympics. Each of these marks have claimed goods and services such as provision of NFTs, computer software, e-books, educational materials, books, photographs, signed autographs, clothing, footwear, t-sweatbands, tracksuit pants and ops, advertising and promotion of services, education, dance course, dance classes, and commercial art design. None of these marks are yet registered.

Ms Gunn’s trade marks may become registered, but the goods and services claimed in these applications may not extend to musical performances. Ms Gunn would also need to establish that Ms Broadbridge has used the word ‘RAYGUN’ as a trade mark which has a very specific legal definition – in that it is being used as a ‘badge of origin’.

Key takeaways

Urgent action can be taken for alleged infringement of IP and these applications can be heard by the courts very quickly. This can make a threat of IP infringement an aggressive action.

Just because you satirise someone, doesn’t mean you aren’t infringing various forms of their IP. That said, it is worth considering defending oneself, as not always are these claims of infringement valid.

At Sladen Legal, our dedicated team of intellectual property specialists can help you to obtain the advice for all stages of your trade mark journey.

Michelle Dowdle
Principal Lawyer
T +61 3 9611 0114 | M +61 408 674 256
E: mdowdle@sladen.com.au

Thomas Howell
Lawyer
T +61 3 5226 8526
E: thowell@sladen.com.au