In one of the most highly anticipated judgments of the year, the Federal Court in Universal Music Publishing Pty Ltd & Anor v Clive Frederick Palmer (No 2) [2021] FCA 434 (Universal v Palmer) found that Clive Palmer, leader of the United Australia Party (UAP), infringed copyright in Twisted Sister's song 'We're Not Gonna Take It' (WNGTI) composed by Dee Snider, with a recording of 'Aussies Not Gonna Cop It'. The song, which featured in advertisements run during the lead up to the 2019 federal election, was broadcast on television and radio and streamed online over a six month period. Palmer had attempted to obtain a licence for the use of the song, however there was a breakdown in negotiations regarding the payment of a licence fee.

Palmer argued that copyright did not subsist in the Twisted Sister song on the basis that it was a 'rip off' of the 18th century hymn 'O Come. All Ye Faithfull' (this claim was withdrawn in an amended defence), that he did not use a substantial part of the literary or musical works, and that his use of the song was fair dealing for the purpose of parody and satire.

The defence of fair dealing for the purpose of parody and satire has been the subject of limited judicial consideration, however recent decisions of Justice Katzman in Universal v Palmer and Justice Burley in AGL Energy Limited v Greenpeace Australia Pacific Limited [2021] FCA 625 provide detailed and useful guidance on the application of the exception.

In Universal v Palmer, Justice Katzmann held that UAP had reproduced a substantial part of the musical and literary works, noting that the musical works were 'strikingly similar' and some of the lyrics were the same in substance. On the issue of whether WNGTI was an original song, Justice Katzmann relied on the expert evidence of musicologists and held that it was original. Lastly, Justice Katzmann held that to rely on the copyright exception of fair dealing for the purpose of parody or satire, the dealing in the copyright works themselves must be both fair and for the purpose of parody or satire. On this issue, Justice Katzman held that Palmer had not used the song to satirise anyone or anything, the lyrics were not varied for this purpose, and the sole purpose of the use was the UAP's election campaign. Justice Katzman stated:

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.”

Justice Katzman

The Federal Court held that Palmer had infringed copyright by reproducing, authorising the reproduction of, communicating and authorising the communication of a substantial part of the musical and literary works without a licence from the applicants.

The Federal Court ordered that Palmer pay $500,000 in damages for copyright infringement based on the hypothetical licence fee for the use of the copyright works, and $1,000,000 in additional damages due to what is said was flagrant copyright infringement. Justice Katzmann provided extensive reasoning for the awarding of the $500,000 damages based on the 'user principle'. This reasoning provides greater support for the broader application of the principle. The 'user principle' is a remedy which attempts to rectify the wrong by requiring the payment of a notional or hypothetical licence fee that would have been paid for the use of the copyright work. Palmer sought to resist a 'user principle' damages order on the basis that Universal would not have in fact granted him a licence to use the song. On the issue of additional damages, Justice Katzman took into account a number of issues including Palmer's flagrant disregard for Universal's rights and giving false evidence at trial, and was highly critical of Palmer's conduct in relation to the infringement and during the trial, stating that it was 'contemptuous', 'high handed' and 'contumelious'.

Universal v Palmer further clarifies the position in relation to 'user principle' damages, and sets a benchmark for the award of additional damages where the infringer's conduct is particularly egregious. It is also the first music case dealing with the fair dealing for the purpose of parody or satire defence, and clarifies that the exception will only apply if the dealing was for the purpose of parody or satire, and also fair.

Palmer has appealed the trial decision of Justice Katzmann so watch this space!

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