Universal Music says 'We're Not Gonna Take It' 4 min read
Clive Palmer's 'Australia's Not Gonna Cop It' jingle has been found to infringe copyright in Twisted Sister's hit 'We're Not Gonna Take It', with the Federal Court awarding $1.5 million in damages against the billionaire.
- Parody requires direct criticism of the original work or artist.
- Parody or satire must be the genuine or real purpose for a dealing to be 'fair'.
- Replacing words in a literary work with synonyms will not avoid infringement.
- When assessing additional damages, the court can have regard to an infringer's financial means to ensure the amount is high enough to operate as a deterrent.
In 2018, Clive Palmer commissioned a 're-recording' of Twisted Sister's 'We're Not Gonna Take It' (WNGTI) for the United Australia Party's (UAP) 2019 political campaign. Palmer's 'Australia's Not Gonna Cop It' (ANGCI) was essentially a cover of the WNGTI chorus, with 'we're' changed to 'Australia's' or 'Aussies' and 'take it' changed to 'cop it'. While Mr Palmer had initially approached Universal Music to obtain a licence to use the song, he elected to 're-record' the song without a licence after refusing to pay the $150,000 eight-month licence fee. ANGCI featured in at least 12 videos, which were broadcast on television 18,600 times and viewed on YouTube and Facebook over 17.5 million times, causing backlash from concerned Twisted Sister fans.
On 6 February 2019, Universal commenced proceedings in the Federal Court alleging that Mr Palmer had infringed the copyright in WNGTI pursuant to the Copyright Act 1968 (Cth) (the Act).
Twisted words not enough
To infringe copyright, a substantial part of the original work must be reproduced. Reproduction requires a finding of objective similarity. Justice Katzmann noted that objective similarity:
- does not require a note-for-note comparison;
- depends largely on the 'aural perception of the judge' and expert evidence;
- involves the structure, notes, melody, harmony and other features of the song; and
- must be determined from the perspective of an ordinary reasonably experienced listener.
Her Honour found that the songs were 'strikingly similar', accepting that the ordinary reasonably experienced listener 'would hear, without difficulty' that ANGCI 'contains music and lyrics that are very similar' to WNGTI. Despite Mr Palmer's contention that ANGCI was an original work that had come to him in a moment of 'deep contemplation', her Honour found it was so similar to the chorus of WNGTI 'that it was obviously a copy of it'. This was sufficient for her Honour to find that the songs were objectively similar. Her Honour stated that the changes to the lyrics were 'immaterial', particularly to an Australian audience, as they conveyed the same meaning.
Her Honour also found that a substantial part of WNGTI had been reproduced in ANGCI. Whether a part is 'substantial' is determined by a qualitative, rather than quantitative, assessment. The parties agreed that the chorus was the most prominent feature of both songs, however, Mr Palmer contended that the WNGTI chorus was an unoriginal rip off of the Christmas carol, 'O Come All Ye Faithful'. Her Honour disagreed, finding that WNGTI's chorus was 'indisputably' original and a qualitatively important part of the original song, and that its reproduction in ANGCI was the reproduction of a substantial part of the original.
Buzzers, cat videos and 'amateurish' drawings not satirical
Mr Palmer relied on the defence of fair dealing for the purposes of parody or satire, pointing to 'satirical devices' used, including sound effects, deliberately unflattering images of politicians and 'amateurishly drawn cartoons'. Justice Katzmann considered this argument to be 'ambitious, to say the least'.
To establish the defence, the defendant must show that the dealing was:
- for the purpose of parody or satire; and
Purpose is determined objectively, meaning that the author's intention is irrelevant. Fairness is judged in relation to that purpose.
Justice Katzmann noted that parody requires a direct comment or criticism of the original work or author, whereas satire can be more general. Satire must nonetheless be fair, and cannot be for the sole purpose of 'cashing in' on the work's popularity. Her Honour concluded that Mr Palmer's use of the work was not fair, finding that:
- any parodical or satirical purpose was a pretence for the UAP's political motive (ie attracting votes);
- the requirement under section 40 of the Act to consider the possibility of obtaining a licence, in relation to the defence of fair dealing for the purpose of research or study, should apply to the parody or satire defence; and
- Mr Palmer was 'merely capitalising on the notoriety or popularity of WNGTI'.
In light of the above findings, Mr Palmer's defence failed.
With the benefit of hindsight, a $150,000 licence would have been a steal.
Her Honour awarded $500,000 in 'user principle' damages under section 115(2) of the Act, which were calculated by reference to a notional licence fee. Relevant factors included the value of the song to each party, that the infringing use was by a controversial political figure, the nature of the use and the risk of consumers associating WNGTI with the UAP. Her Honour rejected Mr Palmer's submission that damages should be calculated according to the fee originally offered, finding that Universal Music did not at the time know of all the relevant facts surrounding the UAP's proposed use of WNGTI, including that they had not been provided with a storyboard, a recording of ANGCI or any of the videos.
Her Honour also awarded additional damages under section 115(4) of the Act. Her Honour considered:
- the flagrancy of the infringement;
- the benefit derived from infringement;
- the damage to the artist's reputation; and
- the need for deterrence.
Justice Katzmann stated that Mr Palmer acted 'in flagrant disregard of Universal's rights', and was not persuaded that Mr Palmer honestly believed his use of WNGTI was lawful, despite his claims that WNGTI was unoriginal and the ANGCI lyrics were his original works.
To ensure the amount operated as a deterrent, her Honour had regard to Mr Palmer's financial means and circumstances. Given his net worth is over $1 billion, and in light of the flagrancy of the infringement, her Honour ordered $1 million in additional damages.
- Ensure you have a licence to use a song for commercial purposes such as advertising.
- If you are refused a licence do not go ahead regardless. The consequences can be penal.
- When seeking to rely on the fair dealing defence of satire or parody, ensure that satire or parody is the primary purpose of the work or the fair dealing defence is unlikely to apply.