Simpsons Solicitors

Clive Palmer and Twisted Sister

May 19th 2021

Simpsons recently acted for Universal Music Publishing Pty Ltd and Songs of Universal, Inc (together, “Universal”) in proceedings against the politician and businessman Clive Palmer.

In a judgment recently delivered (Universal Music Publishing Pty Ltd v Palmer (No 2) [2021] FCA 434) Justice Katzmann of the Federal Court of Australia found in Universal’s favour – ordering Mr Palmer to pay a total of $1.5 million in damages.

The case involved interesting questions around the originality of musical compositions, the defence of parody and satire to copyright infringement, and the calculation of general damages under the Copyright Act 1968 (Cth). References in this article to sections of legislation are to that Act. 

Background Facts

Clive Palmer is a prominent Australian businessman and founder of the United Australia Party (“UAP”). In the lead up to the 2019 Australian federal election, Mr Palmer’s agent sought permission from Universal to record a version of the song “We’re Not Gonna Take It” (“WNGTI”), written by Dee Snider of the American heavy metal band Twisted Sister, for use in video advertisements for the UAP. Universal owned copyright in the music and lyrics of WNGTI.

Licence negotiations between Mr Palmer and Universal broke down when Mr Palmer would not agree to Universal or Mr Snider having any right of approval over the content of the advertisements.

Copyright infringement

Despite not being licensed to use WNGTI, the UAP’s production company instructed session musicians to record versions of its chorus, including a version with the lyrics changed from “We’re not gonna take it” to “Aussies not gonna cop it” (the “UAP Song”). Mr Palmer authorised the broadcast and communication of various video advertisements for the UAP using the UAP Song.

Justice Katzmann found that the UAP Song reproduced both the music and lyrics of WNGTI’s chorus. There were striking objective similarities in the melodic line (both in rhythm and pitch), harmony, key, tempo, instrumentation, tone colour or timbre, backing instrumentation, and lyrics.

The similarities in the works were sufficient for an inference of copying to be drawn. Mr Palmer’s denials of copying were firmly rejected by the Court – Justice Katzmann finding that they “defy common sense, fly in the face of the contemporaneous documents, and were contradicted by the evidence [of] his own witnesses”.

Was the chorus of WNGTI original?

Mr Palmer argued that the music in the chorus of WNGTI was based on the hymn “O Come All Ye Faithful”, and therefore unoriginal and not a “substantial part” of the copyright work.

The Court disagreed. While the first line of WNGTI’s chorus bore a melodic similarity to the first line of “O Come All Ye Faithful”, there were also significant differences, including the rest of the chorus (which did not replicate “O Come All Ye Faithful”), the tempo and rhythm, singing style, and instrumentation, all found to comprise an original combination. The chorus was, for the purpose of Australian copyright law, original.

Parody and Satire

This case is only the second Australian case dealing with the parody or satire defence under s 41A, and the first in relation to music. Mr Palmer argued that his use did not infringe copyright because it was (a) a “fair dealing” and (b) for the purpose of satire. He failed on both counts.

The Court found that whether the UAP videos were satirical was to be approached objectively, and that none of the UAP videos involved “an ironic, sarcastic, scornful, derisive or ridiculing criticism or some vice, folly or abuse”. Instead they merely protested against, or criticised, the Government or Opposition.

Nor was the use “fair”, including because:

  • the UAP Song could have a negative effect on the market for WNGTI because of its association with an unpopular personality or partisan cause;
  • WNGTI was available for licensing within a reasonable time at an ordinary commercial price;
  • the UAP Song took the most prominent part of WNGTI; and
  • Mr Palmer’s intention was to opportunistically infringe Universal’s copyright in WNGTI, and Mr Palmer thought that he could “get away with it” merely by altering some of the words.

Mr Palmer was therefore found to have infringed copyright in WNGTI.

Damages under s 115(2)

The Court calculated damages under s 115(2) based on a reasonable licence fee that would have been charged for the infringing use. This was an application of the “user principle”: that a plaintiff is entitled to recover reasonable damages from a defendant who wrongfully uses the plaintiff’s property, even where the plaintiff may not have suffered actual loss and the defendant may not have derived actual benefit.

On a detailed review of the authorities and legislative context of s 115(2), the Court found that the calculating damages based on the user principle was appropriate, despite remarks in the case of Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (in liq) (2007) 157 FCR 564by Black CJ and Jacobson J that “a royalty does not provide a measure of damages where the copyright owner would not have granted a licence”. Justice Katzmann found that those remarks in Aristocrat were obiter, and in any event the case was distinguishable because Universal had led evidence about the circumstances in which it would have granted a licence to Mr Palmer and the appropriate licence fee.

The Court assessed compensatory damages at $500,000, based on the following factors:

  • The enduring popularity of WNGTI, and therefore its value to Universal.
  • The value of WNGTI to Mr Palmer in its “cut-through” and alignment with the message Mr Palmer wished to convey.
  • The fact that WNGTI had not previously been used in advertising in Australia.
  • The prominent use of WNGTI in multiple, widely disseminated advertisements on free to air television, digital platforms and the UAP website over a use period of 6 months.
  • The use of WNGTI for political purposes by a controversial figure.
  • The risk of WNGTI becoming associated with Palmer and the UAP (although this risk would diminish over time).

The final figure of $500,000 was significantly higher than Universal’s original quote provided to Mr Palmer’s agent of $150,000 (which was based on only limited information about the proposed campaign).

Additional Damages

Under s 115(4), additional damages for copyright infringement can be awarded in particularly serious cases of infringement. Here, the Court awarded very substantial additional damages of $1,000,000, having regard to the following factors:

  • Palmer acted in flagrant disregard of Universal’s rights.
  • Palmer behaved contumeliously after receiving Universal’s cease and desist letter, including trying to deter Universal from enforcing its rights, and threatening to sue Mr Snider for defamation.
  • Palmer gave false evidence at trial.
  • Palmer derived a political benefit from the infringing use, including as evidenced by the high advertising spend on the UAP videos, and obtained a benefit in not paying the licence fee.
  • Palmer taunted, mocked and derided Mr Snider in mainstream and social media both before and during the proceeding.
  • Palmer did not fully comply with his discovery obligations, in a manner deliberately calculated to frustrate Universal’s efforts to ascertain the full scope of his infringing activities.
  • the unauthorised use of WNGTI was deeply upsetting to Mr Snider.

The Court also made declarations that Mr Palmer had infringed Universal’s copyright, and ordered Mr Palmer to remove the UAP Song and videos from all online locations and deliver all unauthorised reproductions to Universal.

Conclusion

Mr Palmer was found to have infringed copyright in the music and lyrics of WNGTI. His arguments that he had independently created the UAP Song, or that WNGTI was unoriginal, failed. He also failed in his parody or satire defence under s 41A. He was ordered to pay damages of $500,000 as a notional licence fee for the infringing use, plus $1,000,000 in additional damages.

Adam Simpson said of the decision:

“The Court’s determination sends a strong message about the unauthorised use of music, and that Mr. Palmer’s conduct was blatant and entirely unacceptable.

“Using songs in advertising, particularly in politics, without permission is an affront to songwriters. UMP works closely with its writers to carefully match advertising opportunities with artistic integrity, ethics and commercial values. Mr. Palmer acted unilaterally and denied that from Dee Snider, the band and UMP. Today’s decision rights that wrong. It also sends a wider message that no matter who you are, copyright cannot be ignored.

“The additional damages award of $1m is one of the highest for copyright infringement in Australia, and the highest in relation to music copyright – and rightly so. It’s a salutary warning for those who throw caution to the wind. The decision is also a welcome clarification of the ‘parody or satire’ defence. Put simply, the defence will only apply if the purpose of the use was for parody or satire and it must also be ‘fair’. Clive Palmer’s use was for a political campaign and was anything but fair.”