Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434
In a recent decision handed down in the Federal Court of Australia, the honourable Katzmann J delivered a scathing decision in favour of Universal Music Publishing Pty Ltd and Songs of Universal, Inc against controversial politician, Clive Palmer for his infringement of the copyright in their musical and literary works.
In his run up to the 2019 Federal Election, Palmer unlawfully authorised the reproduction of the 1984 hit “We’re Not Gonna Take It” (“WNGTI”), from American heavy metal band Twisted Sister in a series of political videos. Palmer’s version, “Aussies Not Gonna Cop It” (“ANGCI”) was found to have infringed the musical and literary works originally written by Mr Daniel “Dee” Snider resulting in Palmer being ordered to pay $1,5m in damages (comprised nominal damages in the sum of $500,000 + $1m in additional damages). The judgments sheds light on the additional damages available under section 115(4) of the Copyright Act and how Courts can order them when there has been flagrant disregard for the copyright of another and the need to deter infringement generally.
Palmer ran some fairly unique and bold arguments and evidence including alleging that copyright did not subsist in the chorus of WNGTI, which he later changed his mind about, before alleging that he was in fact the author of the original lyrics of ANGCI. During cross-examination, Palmer testified that the lyrics came to him whilst deep in thought one night and recalled thinking of a line misremembered from the film “Network” – “we’re not gonna take it anymore”. Her Honour found Palmer to be “a most unimpressive witness” and stated that his testimony around the authorship of ANGCI “smacks of recent invention”. Her Honour was less than impressed with the fact that despite alleging that he was the author of the lyrics to ANGCI, Palmer had sought a licence from Universal to use the musical works of WNGTI for his political campaign, which was never agreed, and had instructed the session musicians to prepare using backing tracks from WNGTI.
An interesting comparison was made between the chorus of WNGTI and the intro to a 270-year-old choral hymn. Part of Palmer’s amended defence was the allegation that Dee Snider was not the original author of WNGTI and that the main chorus was in fact a reproduction of the opening line of “O Come All Ye Faithful”. Musicologists for both sides weighed in and ultimately concluded that whilst there were similarities in the melodies of the vocal lines, the other aspects of the musical works and lyrics were dissimilar. In Dee Snider’s 2010 biography he admits to the similarities between the two songs and said that the hymn could’ve transformed the writing of WNGTI. The Court Preferred the evidence led by Universal’s musicologist and concluded, “while Mr Snider may well have been influenced to some degree by O Come All Ye Faithful, I find that the only part he took from it, albeit unconsciously, was the melodic contour of the first phrase.”
The second main aspect to Palmer’s defence was his reliance on the exception of fair dealing for the purposes of parody or satire under section 41A of the Copyright Act. The Court referred to other recent case law on the point noting that in order for this defence to stand, the use of the copyright work must be ‘fair and for the purpose of parody or satire where such use is not simply used as a means to avoiding putting in intellectual effort so as to benefit from the notoriety of the parodied or satirised work. The Court again found against Palmer stating that he used a substantial part of WNGTI as he “saw political and personal advantage in both its notoriety or popularity and the message it conveyed, and he thought that he could get away with using it merely by altering some of the words. He was wrong.”
Finding in favour of Universal Music Publishing and Songs of Universal Inc, her Honour took into account the flagrancy of the infringement as well as the reasonable cost of licensing the musical and literary works. This judgement affirms the notion that reproduction of copyright works for the purpose of parody or satire requires that the use of the works themselves must be for that specific purpose. It is not sufficient to simply use a piece of music or lyrics behind parodied or satirical images or videos in an attempt to get around paying a licence fee as Palmer had.
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