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Cop that: Clive Palmer ordered to pay $1.5 million in damages for copyright infringement

12 May 2021

#Intellectual Property

Published by:

Thomas Rubic

Cop that: Clive Palmer ordered to pay $1.5 million in damages for copyright infringement

In political advertising for the United Australia Party (UAP) at the last federal election, Clive Palmer and the UAP heavily used a jingle called “Aussies Not Gonna Cop It”.

The lyrics went as follows:

“Australia ain’t gonna cop it

No Australia’s not gonna cop it

Aussies not gonna cop it, anymore.”

Universal Music took issue with this, alleging the UAP song was a reproduction of the popular 1984 song “We’re not going to Take It” (WNGTI) composed and written by Daniel “Dee” Snider of Twisted Sister. The chorus of WNGTI, repeated eight times in that song, is:

“We’re not going to take it

No, we ain’t gonna take it

We’re not going to take it, anymore”.

Mr Palmer’s defence

By the time of trial, Mr Palmer had withdrawn his original assertion that the musical work was not an original musical work within the meaning of the Copyright Act. Instead, he claimed that the UAP recording and videos did not incorporate a substantial part of the musical work or the literary work and therefore did not infringe Universal’s copyright. In the alternative, he claimed that the defence of fair dealing for the purpose of parody or satire applied.

Licensing of WNGTI

Prior to using the UAP song in the 2019 campaign, UAP had sought to obtain a licence from Universal Music to use the song but ultimately decided not to proceed, seemingly because Universal wanted further creative details and approval of the final piece.

WNGTI has been previously licensed for use in musical theatre, films, and televisionIt has also been used for advertising purposes on many occasions and in various parts of the world. 

It was apparently important to Mr Snider that the message not be directed to any particular authority figures or causes, in part to retain its enduring appeal.

The Court noted that several American politicians have used WNGTI in their election campaigns. Mr Snider performed it for Arnold Schwarzenegger’s campaign, although not to his knowledge for any campaign advertisements. In 2012, an early Republican candidate for president, Paul Ryan, used the song at one of his campaign rallies but ceased to use it at Mr Snider’s request because Mr Snider did not want his song to be associated with Mr Ryan or his views and policies. 

In 2015, WNGTI was used as the theme song for Donald Trump’s first presidential campaign, initially with Mr Snider’s permission. But when it became evident that he did not share many of Mr Trump’s positions and policies and did not want others to think that he approved or endorsed his campaign, he asked him to stop using the song and Mr Trump did so.

UAP campaign

According to evidence given at trial, total expenditure on the UAP advertising campaign was roughly $80 million. As at January 2019, prepaid expenditure on broadcast advertising was $12 million. The UAP version of WNGTI was used in association with 12 UAP videos that referred to various grievances that ‘ordinary Australians’ currently had from the performance of the NBN to banking rip-offs.

The reaction

Mr Snider first heard of the use of the song through various tweets from his fans, to the effect of “do you know what’s going on?!”. He was reportedly very upset, as, not only was his song “being misappropriated and misrepresented, but the production of the advertisement on every level was horrendous: the poor lyrics, the poor quality vocals and the poor production values as well as the context of what appears to be a cheap advertisement for a party whose values [he] knew nothing about”. 

What was more shocking to Mr Snider was Mr Palmer’s reaction to his request to cease and desist from using the song. Described in the judgment, the request resulted in a public counterattack on Mr Snider by Mr Palmer, including a threat to sue Mr Snider for defamation.

Determining infringement

Determining whether a work has been infringed requires a comparison to be made of the respective works. Two musicologists were engaged to perform a technical comparison.

For the purposes of copyright law, reproduction involves two elements – resemblance to, and actual use, of the copyright work and some causal connection between the works.

Justice Anna Katzmann noted that the works were strikingly similar, and that was her immediate reaction when she heard them. Her Honour remarked that it was also the reaction of many other listeners as evidenced by the tweets and emails produced to the Court.

In their individual reports, the experts each pointed to similarities in the melodic line (in both pitch and rhythm), harmony, key, tempo, instrumentation and lyric content. It was noted that the “vocals [had] a rough and raucous quality, the singing seeming half way to a shout”.

The literary works were also found to be objectively similar. While it was noted that the reproduction need not be exact, similarity, not identicality, is required.

Parody and satire defence

Having found there to be infringement, the Court then considered whether the parody or satire defence applied.

Mr Palmer’s submission that he had intended to criticise government policy and various politicians through the creation of the UAP videos was found to be irrelevant. Whether the dealing is fair is objectively determined according to the standards of a fair-minded and honest person.

It was also argued that the UAP videos were objectively created for a satirical purpose. In response, Universal submitted that the videos were created to encourage people to vote for the UAP as opposed to criticising political policies and politicians. Further, they argued the use was not fair, as Mr Palmer had sought to benefit from the popularity of the song without entering into a licence with Universal when the approval process did not suit him.

The Court agreed. In the view of Justice Katzmann, Mr Palmer had used the most prominent feature of the copyright works and, despite making minor changes to the words, had left their meaning intact. As such, Mr Palmer’s true purpose was to capitalise on the popularity of the song and his use of the works did not constitute a fair dealing. The majority of the UAP videos were not satirical but were merely critical. The remainder of the videos which purportedly featured satirical devices, such as various sound effects and ‘silly’ images, did not use the works themselves for a parodic or satirical purpose. Accordingly, Mr Palmer was unable to rely on the defence of fair use for the purpose of parody or satire.

Damages

Universal was awarded $500,000 in ordinary damages and $1,000,000 of additional damages.

Ordinary damages

The Court took the following factors into account in determining what a hypothetical licence fee would be for the copyright works:

  • the enduring popularity of the song
  • the political value of the lyrics to Mr Palmer
  • that the song has not been used for advertising in Australia before
  • the use of the song by a controversial figure for political purposes
  • that the song had featured prominently in a number of the UAP advertisements
  • the advertisements were shown frequently across Australia on a variety of platforms
  • the campaign lasted for six months
  • the advertisements used the most memorable feature of the works
  • the risk that the song may become associated with UAP and Mr Palmer.

Additional damages

As a result of a number of aggravating factors, the Court also awarded additional damages to Universal. These factors included:

  • Mr Palmer’s flagrant disregard of Universal’s rights
  • Mr Palmer’s conduct after receiving a cease and desist letter (threatening to sue for defamation)
  • Mr Palmer’s giving of what was considered  by the Court to be false evidence
  • the political and other benefits received by Mr Palmer through his exploitation of the song’s popularity
  • Mr Snider’s disapproval of the unauthorised use of the song
  • Mr Palmer’s poor approach to discovery obligations, as described by the Court.

The future of music in political advertising

Evidence given by Universal suggested that popular music had not ever been used in political advertising in Australia and this is not surprising. The licence fees would be prohibitively high for most political parties and, like the use of music in commercial advertising, defences such as parody or satire would be very difficult to make out given the overriding purpose would be to promote that political party, and encourage people to give them their vote.

Authors: Emily Booth & Thomas Rubic

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Thomas Rubic

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