Universal Music Publishing Pty Ltd v Palmer (no 2) [2021] FCA 434

30 April 2021

Summary

One of the more high-profile copyright disputes in recent times has ended with Clive Palmer being ordered to pay Universal Music Publishing around $1.5 million after the FederalCourt held that Mr Palmer had infringed copyright in Twisted Sister’s songWe’re Not Gonna Take It (WNGTIduring anadvertising campaign in lead up to the 2019 federal election. 

 

Facts

During the 2019 election campaign, Clive Palmer’s United Australia Party (UAP) ran a series of advertisements which used an adaption of Twisted Sister’s song,We’re Not Gonna Take It (WNGTI). 

UAP initially sought to obtain a licence to use the song from Universal Music, who acquired the copyright to the musical work and the lyrics in 2015. Universal music required a $150,000 licence fee for the campaign. UAP countered with an offer of $35,000 after which negotiations deteriorated.

Palmer and UAP used the song anyway, changing the lyrics from we’re not gonna take it to Aussies not gonna cop it, and recorded a new sound recording of the song which they used in ads on TV and social media. 

Universal Music then brought an action for copyright infringement in the Federal Court of Australia. 

The arguments run by Mr Palmer in defending the claim included:

  1. (i) that copyright did not subsist in the song WNGTI as it was a rip off of the 18th century hymn O Come, All Ye Faithful(this claim was withdrawn in an amended defence)

  1. (ii) that he did not use a substantial part of the musical or literary works which make up the songand

  1. (iii) that his use of the song was fair dealing for the purposes of parody and satire;

 

Copyright issues

The key issues at trial were:

  1. 1. Whether the song Aussies Not Gonna Cop It (ANGCI) contained a reproduction of a substantial part of the musical work comprised in the song WNGTI, composed by Dee Snider (the Musical Work), and the lyrics of that song, also composed by Mr Snider (the Literary Work).

Justice Katzmann held that the musical works of ANGCI and WNGTI were strikingly similar. Her Honour cited her own impression, the evidence of expert musicologists, and the reactions of fans who voiced their concerns on Twitter and through correspondence written to Mr Snider, expressing their disappointment at the song being used in Mr Palmer’s advertising campaign. 

Regarding the Literary Work, her Honour also held at [213] that the lyrics were the same in substance:

We’re not going to take it

No, We ain’tgonna take it

We’re not going to take it, anymore

Was changed to

Australia ain’t going to cop it

No Australia’s not gonna cop it

Aussie’s not gonna cop it, anymore.

 

  1. 2. Whether the song WNGTI was original or copied from O Come, All Ye Faithful

Here, Katzmann J relied on the expert evidence from two musicologists who analysed similarities between the two songs. 

Dr Davidson, the musicologist engaged by Mr Palmer claimed that the melodic contours of the two songs were the same. 

Dr Ford, the musicologist called by Universal Music was of the view that the only similarity between the two songs was the melodic contour of the first phrase of the chorus of WNGTI in the first phrase of O Come All Ye Faithful.

Unlike Dr Davidson, Dr Ford did not consider that the similarity was obvious or immediately noticeable and said that that most listeners would not notice any resemblance unless the common melodic contour was drawn to their attention’.

Katzmann J concluded at [261]:

Dr Davidson’s approach was unlike that of the ordinary experienced listener and so differed from what the law requires. He dissected the music into its component parts, comparing the individual components of the copied part of WNGTI with the individual components of other works, paying little or no regard to the work as a whole. At times I felt that Dr Davidson’s evidence descended into advocacy whereas Dr Ford impressed me as dispassionate throughout. Dr Ford’s approach was orthodox and his breadth of experience gave him an advantage over Dr Davidson.

  1. 3. Whether Mr Palmer was entitled to rely on the fair dealing exception of parody and satire. 

Having established that the song WNGTI was original and that Mr Palmer had used a substantial part of it in the advertising campaign, the final question was whether Mr Palmer could rely on the fair dealing exception of parody and satire. 

Katzmann J considered the relevant case law on the meaning of parody and satire and concluded at [353]

… even if it could be said that any of the videos had a satirical purpose, it is the images that were said to be used for that purpose, not the copyright works as embodied in the UAP recording, and the UAP videos are only said to infringe Universal’s copyright to the extent that they incorporate the UAP recording. The point is that to attract the protection of s 41A, it is the dealing in the copyright works themselves that must be for the purpose of parody or satire. WNGTI was not used to satirise anyone or anything, nor were the lyrics as varied. On an objective assessment, the sole purpose to which the copyright works were put was to underscore the UAP’s key campaign message and to rally the faithful and the disaffected to the UAP’s cause.

 

Remedies granted by the Court

The Court held that Mr Palmer had infringed copyright by:

(a)    reproducing

(b)    authorising the reproduction of

(c)    communicating, and

(d)    authorising the communication of

a substantial part of WNGTI in Australia without the licence of the applicants.

 

The remedies ordered by the Court were:
1. 
That Mr Palmer by himself, his servants, agents or otherwise be permanently restrained from:

  1. (a) reproducing

  1. (b) authorising the reproduction of

  1. (c) communicating to the public, and

  1. (d) authorising the communication to the public of

the whole or a substantial part of the WNGTI in Australia without the licence of the applicants.

2. 
That Mr Palmer take all necessary steps to:

  1. (a) cause any and all reproductions of the UAP recording, including the UAP videos and any other video or audio recording that embodies the UAP recording, to be removed from all online locations controlled by the respondent or the UAP (including on the websites YouTube and Facebook), and

  1. (b) cause the communication of the UAP recording, including the UAP videos and any other video or audio recording that embodies the UAP recording, (including in advertisements for the UAP) to cease.

  2. The Mr Palmer deliver up to the applicants all unauthorised reproductions of the Musical Work or the Literary Work in his possession, power, custody or control, including the UAP recording and UAP videos.

  3.  

3. That Mr Palmer deliver up to the applicants all unauthorised reproductions of the Musical Work or the Literary Work in his possession, power, custody or control, including the UAP recording and UAP videos.

4. That Mr Palmer pay $500,000 in damages for copyright infringement and $1,000,000 in additional damages due to the flagrancy of the infringement.