Clive Palmer’s $1.5 million lesson in Copyright Law
Marketing and advertising campaigns often use existing songs or music, in building brand awareness. Specific songs or music become associated with a particular brand, business or organisation. Where songs or music are owned by third parties, licences have to be obtained from all the copyright owners and right holders.
These licences can be expenses, but to proceed without the required copyright licences will result in an infringement of copyright for which a court can order substantial damages be paid to the copyright owner. This was recently discovered by Clive Palmer (‘Palmer’), when he was ordered by Federal Court of Australia’s Justice Anna Katzmann to pay Universal Music Publishing, $1.5 million in damages after finding that Palmer had infringed copyright in Twisted Sister’s song, We’re Not Gonna Take It (the ‘Song’), in his United Australia Party (‘UAP’) advertising campaign leading up to the 2019 federal election.
Universal Music Publishing Pty Ltd –v- Palmer (No 2)  FCA 434
In the lead up to the 2019 election, Palmer and UAP approached Universal Music Publishing (‘Universal’) for a licence to use a re-recording of the Song, with possible lyric changes, in a series of advertisements as part of their pre-2019 election advertising campaign. [i]
However, negotiations between Universal and UAP for use of the Song deteriorated after Universal requested a licence fee of $150,000 for its use and UAP made a reduced counter offer of $35,000 for the licence.
With licence negotiations stalled, Palmer and UAP decided to go ahead and use the Song in their television and social media election campaign advertising anyway, but with the lyrics of the Song changed from “We’re not gonna take it” to “Aussie’s not gonna cop it” and by making and using a new recording of their version.
As a result, Universal commenced its action against Palmer for copyright infringement in the Federal Court of Australia.
Copyright in the Song
“…unless the [Copyright] Act otherwise provides, anyone who is not the owner or licensee of the copyright in a work who reproduces (copies) that work in a material form, publishes it, performs or communicates it in public, or adapts it will infringe the copyright.” (Justice Anna Katzmann)[ii]
Pursuant to the Copyright Act (Cth) 1968 (the ‘Copyright Act’), unless a special exception applies (such as the exception for fair dealing for the purpose of parody or satire[iii]), a licence will be required to reproduce all or a substantial part of each of the original components of a song, being:-
- the song’s lyrics written by the songwriter, which is a literary work under the Copyright Act[iv]; and
- the composer’s musical score for the song, which is a musical work under the Copyright Act.
It is important to note that copyright in the lyrics and the musical work of a song are not necessarily owned by the same party, which means that permission from more than one copyright owner may be required before use or reproduction of that song.
In this case, while both the Song’s lyrics and music were originally written and composed by Dee Snider, Universal had acquired the copyright in both the literary work and the musical work components of the Song in 2015 and on 1 January 2019 Universal became the exclusive licensee in Australia of the copyright in the Song, with rights to sue for infringements before that date.[v]
In addition, under the Copyright Act, a sound recording is separately protected by copyright. So a licence will also be required from the owner of the copyright in that sound recording – usually the recording company and/or the song’s performers on that recording – if one intends to use or reproduce a specific sound recording of a song.
A ‘substantial part’[vi]
It is often mistakenly thought that if you only use a part of the song you will avoid infringing copyright. But think again. You will still fall foul of copyright law if the part that is used amounts to a substantial part of the song. For the purposes of copyright, the meaning of substantial part has been interpreted by our courts on a case by case basis, resulting in established guiding principles.
You need not use a large part or even a certain percentage of the original song for it to amount to a substantial part. Nor will you avoid infringement by simply changing or adding something to the song. Rather, it is sufficient if the part that is used is a distinctive, essential or material part of the original song.
Defences to Copyright Infringement
For the purposes of the Copyright Act, “Reproduction” means copying and does not include the production of a substantially similar result by independent work, without copying”[vii]
Under the Australian Copyright Act, where a work has been created independently as a result of one’s own intellectual effort without copying another person’s work, it will not be an infringing work, even though it may be substantially similar.
Palmer, in his defence, argued that he had not infringed copyright in the Song “We’re not gonna take it”. because he had not copied all or a substantial part of the Song’s lyrics as he had written his own lyrics independently.
In cross-examination, Palmer also claimed that his lyrics had been inspired by the Peter Finch 1977 movie, ‘Network’, where he allegedly said in one of the scenes, “we’re not gonna take it anymore”[viii], rather than those of the Song.
In regard to the Song’s literary work, her Honour found that the use of some of the words in the chorus of the Song resulted in lyrics to the chorus in both works being “in substance the same”[ix].
The lyrics of the Song’s chorus are:-
“We’re not going to take it
No. We ain’t gonna take it
We’re not going to take it, anymore.”
The lyrics of the chorus of Palmer’s song used in UAP’s advertisements were:-
“Australia ain’t going to cop it
No Australia’s not gonna cop it
Aussie’s not gonna cop it, anymore.”
Her Honour rejected Palmer’s assertion that he had come up with the words independently of Dee Snider’s Song[x], and held that “….the copyright work was the source from which the UAP recording was derived. In the face of the evidence it is, with respect, ludicrous to suggest that the UAP recording was created independently of [the Song]. The notion that there is no causal connection between the UAP recording and [the Song] is fanciful.”[xi]
In regard to the Song’s musical work, after considering her own impression together with all the evidence, including from expert musicologists, Justice Katzmann held that the musical works of the Song and the UAP version were “strikingly similar”[xii]. This was also evidenced by the concerned reactions and complaints from Dee Snider’s and Twisted Sister’s fans (on Twitter and in direct correspondence to Mr Snider) who recognised the Song upon seeing the UAP campaign advertisements.
No Copyright in the Song
As his defence Palmer also claimed (which was later withdrawn in an amended defence) that copyright did not subsist in the Song’s musical work as it was “not an original musical work within the meaning of the Act” but was, instead, a copy of an 18th century hymn ‘O Come All Ye Faithful’ –and he had used the melody of ‘O Come All Ye Faithful’ instead.
Justice Katzmann noted that there is no rule that a work which is based on another cannot for that reason alone attract copyright[xiii] and that in Australia the position remains “that for copyright to subsist in a work, there need only be “a minimal degree of creativity”.[xiv]
Once again, her Honour considered the expert evidence from musicologists about the similarities and differences between the printed and recorded versions of the chorus of the Song and of the hymn O Come All Ye Faithful[xv], as well as from Dee Snider himself, whose evidence that he was not inspired by, or otherwise thinking about O Come All Ye Faithful at the time he was writing the Song, was accepted by her Honour.[xvi]
Having found that the Song’s music was an original musical work and the Song’s lyrics were an original literary work within the meaning of those terms in the Copyright Act.[xvii], her Honour concluded that the part of the Song she had found to be copied by Palmer (the chorus) was an essential or material part of the Song – which for the purposes of the Copyright Act, was a substantial part.[xviii] Universal Music Publishing had established infringement subject of any fair dealing exceptions applying.
Fair Dealing Exceptions
With his other claims rejected, Palmer sought to defend his unauthorised use of a substantial part of the Song’s lyrics and musical work by arguing his use was permitted under the Copyright Act’s fair dealing exception of parody and satire within the meaning of s41A of the Copyright Act[xix].
With no definition of ‘parody and satire’ in the Copyright Act, the case law and Palmer’s evidence, in particular, was considered by Her Honour to determine if satire[xx] was in fact Palmer’s genuine or real purpose of the dealing or rather a pretence for some other purpose.[xxi]
Her Honour ultimately rejected Palmer’s fair dealing defence stating that she was not satisfied that Palmer’s use of the copyright works in these circumstances constituted fair dealing. Justice Katzmann’s reasons for this conclusion included that:-
- “Mr Palmer’s use of [the Song] was opportunistic. 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”[xxii]; and
- “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…. 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. The Song 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.”[xxiii]
Damages for Copyright Infringement
Her Honour Justice Katzmann ordered Palmer to pay $500,000 in damages for the copyright infringement. She determined that the damages “should be calculated on the basis of a notional or hypothetical licence fee”[xxiv] based on and taking into account the specific aspects and circumstances which included[xxv]:-
- the Song’s value for Universal – its popularity has endured over the decades since its original release;
- The considerable value of the use of the Song to Palmer;
- The fact that the Song had not previously been used in advertising in Australia;
- The Song was used for political purposes by a “controversial figure”;
- The Song was used and featured in multiple advertisements;
- The campaign lasted 6 months and the advertisements were aired and shown on multiple platforms throughout Australia – including free to air television, the UAP website, YouTube and Facebook;
- Palmer’s UAP advertising campaign used the chorus – which is a substantial part, both quantitatively and qualitatively, and the song’s most memorable feature; and
- That there is a risk, which will diminish with time, that some people will continue to associate the Song with the UAP and Mr Palmer.
Justice Katzmann concluded that this case also called for a substantial award of additional damages and ordered that Mr Palmer also pay $1,000,000 in additional damages due to Palmer’s flagrant disregard for Universal’s rights.
Her Honour found Palmer’s conduct and behaviour to be “high-handed and contemptuous” and “contumelious”, including after receiving Universal’s cease and desist letter, and that notwithstanding that he actually believed that Universal held the copyright in the Song’s lyrics and musical work and that he needed a licence, he went ahead and used them anyway without permission.[xxvi] Her Honour also found that Palmer “gave false evidence…indicating that the need for both punishment and deterrence is high.”[xxvii]
Authored by Rochina Iannella, Lawyer, Stephens Lawyers & Consultants
© Stephens Lawyers & Consultants. 25 May, 2021
This article is not intended to be a substitute for obtaining legal advice.
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[i] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 66
[ii] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 22
[iii] Copyright Act 1968 (Cth.), Division 3 – The exceptions for fair dealing with copyright protected works are contained in Division 3 of the Copyright Act. Section 41A covers the exception for fair dealing for the purpose of parody or satire.
[iv] Sec 31 Copyright Act 1968 (Cth.)
[v] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 58 – 60
[vi] Sec 14 Copyright Act 1968 (Cth.)
[vii] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 19; where Justice Katzmann cites EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444 at –,  (Emmett J) (EMI v Larrikin) citing Francis Day & Hunter Ltd v Bron  Ch 587 at 618 and 623-624 and SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 at 472
[viii] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 114, 115
[ix] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 213
[x] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 217
[xi] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 204
[xii] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 181
[xiii] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 228
[xiv] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 230, citing Beach J’s observation in Henley Arch Pty Ltd v Lucky Homes Pty Ltd  FCA 1217; 120 IPR 317 at 
[xv] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 261
[xvi] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 238
[xvii] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 46
[xviii] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 232, 278
[xix] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 25 to 28
[xx] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 314; “Mr Palmer eschewed reliance on parody. He rested his case on satire”.
[xxi] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 300, 304
[xxii] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 329
[xxiii] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 353
[xxiv] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 449
[xxv] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 469 to 478
[xxvi] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 496, 497
[xxvii] Universal Music Publishing Pty Ltd v Palmer (No 2)  FCA 434 at par 498