Universal Music are not gonna take it anymore!

28 May 2021

Clive Palmer has been ordered to pay $1,500,000.00 in copyright infringement damages to Universal Music Publishing, following his attempt to modify Twisted Sisters hit song “We’re Not Gonna Take It” to boost the United Australia Party’s 2019 election campaign.

In Issue

  • The main issue before the Federal Court was whether politician, Clive Palmer, in authorising the reproduction of a substantial part of the glam rock song “We’re Not Gonna Take It” for a 2019 election campaign, infringed Universal Music Publishing’s copyright over the song.

The background

In 2019, in the lead up to the federal election, the United Australia Party (UAP) attempted to emphasise its campaign message by producing an adaptation of the hit song “We’re Not Gonna Take It” by heavy metal band, Twisted Sisters. A series of videos and audio advertisements were published, reproducing the same melody but with a political twist on the lyrics to produce the song “Aussies Not Gonna Cop It”.

Prior to UAP’s release of “Aussies Not Gonna Cop It, an initial attempt was made to obtain a license from Universal Music Publishing (Universal Music) for the rights to use “We’re Not Gonna Take It” for UAP’s campaign. The fee was $150,000.00, however UAP attempted to negotiate the fee down to $35,000.00, which Universal Music rejected. Ultimately, no agreement was reached about a licence. UAP proceeded to use the song in any event, which then prompted Universal Music to bring a claim in the Federal Court of Australia (Court) against Mr Palmer for copyright infringement.

The decision

In the proceedings, it was common ground that if “Aussies Not Gonna Cop It” contained a reproduction of a substantial part of the music and/or lyrics of WNGTI, then Mr Palmer had infringed Universal Music’s copyright, unless he had a defence. It was found that ANGCI did in fact contain a substantial part of the music of “We’re Not Gonna Take It” and, as such, Mr Palmer relied on the defence of ‘fair dealing for the purpose of parody or satire’ under s 41A of the Copyright Act 1968 (Cth) (Copyright Act).

Section 41A of the Copyright Act states that:

“a fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire”.

In consideration of the above, the Court determined that UAP’s advertising videos ‘could not conceivably be said to have a satirical purpose’ and that:

“even if it could…it was the images that were said to be used for that purpose, not the copyright works 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. WNGTI was not used to satirise anyone or anything, nor were the lyrics as varied…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”.

As such, Katzmann J concluded that Mr Palmer’s dealings in the copyright works were neither fair nor for the purpose of parody or satire for the purpose of s 41A of the Copyright Act.

Accordingly, in addition to the Court’s orders to remove all publications of “Aussies Not Gonna Cop It”, Mr Palmer was required to pay a total of $1.5 million in copyright damages, which included $1 million in exemplary damages. The Court was highly critical of Mr Palmer’s conduct to the extent that it was considered "high-handed", "contemptuous" and "contumelious". Further, it was found that Mr Palmer’s flagrant disregard of Universal Music’s copyright, the licencing requirements to use the work, his noncompliance with civil procedure, and his humiliation of the composer, attributed to the award of exemplary damages.

Implications for you

The decision highlights the strong stance the Courts will take in protecting a copyright owners’ rights and the misappropriation of such rights. Parties should be under no illusion that any flagrant, contemptuous and deliberate infringement of copyright laws will likely result in significant additional damages being made even where the copyright holder has suffered little or no loss. Further, a party’s conduct in the proceedings will also be a relevant factor when assessing whether damages ought to be awarded and the amount.

Universal Music Publishing Pty Ltd v Palmer (No 2) [2021] FCA 434

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