Federal Court declares it’s not gonna take no copyright infringement

By Lynne Lewis, Kellie O'Flynn

05-2021

In one of the highest awards of additional damages ever granted for copyright infringement in Australia - and the highest for music copyright – the Federal Court has ordered businessman and politician Clive Palmer to pay Universal Music (Universal) $1.5 million for reproducing a substantial part of Twisted Sister’s “We’re Not Gonna Take It” (WNGTI) during a 2019 Federal election campaign.

In handing down a judgment 1  that also awarded legal costs to Universal and placed a permanent restraint on any and all further reproductions of WNGTI by Mr Palmer, Justice Katzmann of the Federal Court said she found him to be an “unreliable witness whose evidence was at times incredible”. 

One of the aspects the judgment was most critical of was Mr Palmer’s “flagrant disregard” for copyright law. The evidence established that despite claiming to have independently conceived the lyrics, Mr Palmer had approached Universal through representatives in the first instance to negotiate a licence to use a re-recorded version. Negotiations broke down after Mr Palmer “baulked” at being quoted a licence fee of $150,000, yet he proceeded with the recording and use of a lyrically-varied version of WNGTI in what the Court described as “apparent indifference to the want of a licence”. 

Despite the initial attempt to seek a licence, Mr Palmer’s first affidavit claimed that the version of the song used by the United Australia Party (UAP) in the 2019 Federal election campaign was an original work he had composed himself. He proceeded to deny infringement on the basis that the recording used “original lyrics” and further that the use of WNGTI was a fair dealing for the purpose of parody or satire. Having established that WNGTI was an original work and that Mr Palmer had used a substantial part of it, Justice Katzmann considered whether Mr Palmer could rely on the fair dealing exception. The Court held that to attract the protection of that defence, it is the dealing in the copyright works themselves that must be for the purpose of parody or satire. It concluded that WNGTI was not used to satirise anyone or anything - the sole purpose of its use was to underscore the UAP’s key campaign message and rally voters to its cause.   

Interestingly, after hearing expert evidence on the issue, the Court applied the “user principle” to award compensatory damages of $500,000 for the use of the copyright works during the period of the infringements, rather than the $150,000 licence fee Universal quoted in the initial negotiations. The $500,000 was calculated based on a reasonable hypothetical licence fee that would have been charged for the use of WNGTI in UAP advertising.

In finding that Universal had established a case for additional damages, the Court indicated that the false evidence given by Mr Palmer at the hearing – including “concocting a story to exculpate himself” – called for an award which would act as both a punishment and a deterrent. Justice Katzmann assessed the appropriate amount in the circumstances to be $1 million. Other factors taken into account when considering the level of additional damages included:

  • “High-handed and contemptuous” conduct in going ahead with the use of copyright works despite an awareness of the requirement for a licence;

  • Failure to engage with Universal following receipt of a cease and desist letter;

  • The deriving of a benefit from the unauthorised use of the copyright works – not just politically, but also financially through the avoidance of a licence fee;

  • Mr Palmer’s mocking of the composer of WNGTI – Twisted Sister’s Dee Snider – in mainstream and social media both before and during the hearing together with his “indifference to the truth”, including an appearance on Sky News where he falsely accused Mr Snider of having admitted in evidence to copying from O Come All Ye Faithful; and 

  • Conduct relating to procedural matters, including a deliberate failure to produce certain documents in an effort to frustrate Universal’s efforts to ascertain the full scope of Mr Palmer’s infringing activities. 

In addition to clarifying the scope of the fair dealing defence, the judgment is a welcome vindication of the rights of copyright owners and a salutary warning to would-be infringers. It highlights that compensatory damages should not be viewed as a cost of doing business, as infringement raises a real risk of high awards of additional damages. 

Written by: Lynne Lewis (Partner) and Kellie O'Flynn (Senior Associate)

 


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