The case concerns the use of the song ‘Aussies Not Gonna Cop It’ throughout the campaign of Clive Palmer’s United Australia Party (UAP) in the lead up to the 2019 federal election. Palmer authorised the recording of the song, and its synchronisation with various video advertisements which ran for no longer than 30 seconds. ‘Aussies Not Gonna Cop It’ is similar both musically and lyrically to the chorus of Twisted Sister’s 1984 hit ‘We’re Not Gonna Take It’.
Universal Music Publishing Pty Ltd (Universal) is the exclusive licensee of the copyright in the music and lyrics of ‘We’re Not Gonna Take It’. Universal alleged ‘Aussies Not Gonna Cop It’ infringed the copyright in the music and lyrics of ‘We’re Not Gonna Take It’.
Under s31 of the Copyright Act 1968 (Cth), copyright subsists both in musical works and literary works. Original song lyrics constitute a literary work. The copyright owner has the exclusive right to reproduce, publish, perform, communicate and adapt musical and literary works. Pursuant to s 14, copyright is infringed if an unauthorised party commits any of these acts in respect of a substantial part of a copyright work.
The three issues before the Court were:
- whether the recording of ‘Aussies Not Gonna Cop It’ and the advertisement videos constituted the reproduction of a substantial part of the music or the lyrics of ‘We’re Not Gonna Take It’;
- if it was established that Palmer had reproduced a substantial part of the music or lyrics of ‘We’re Not Gonna Take It’, whether the parody or satire defence was available to Palmer; and
- what relief Universal should be granted if Palmer had reproduced a substantial part of the music or lyrics of ‘We’re Not Gonna Take It’ and the defence was unavailable.
Substantiality of reproduction
Copyright does not protect against independent creation of an identical work. Accordingly, at trial, Palmer advanced an argument that he independently wrote the lyrics based on a line from the Peter Finch movie Network. He testified to having written a series of ideas, including the lyrics of ‘Aussies Not Gonna Cop It’ on a piece of paper in the middle of a night in September 2018. His evidence was that, before he woke the next morning, his employees had snuck into his bedroom and disposed of the paper. Palmer made no subsequent record of the lyrics, and in an unrelated coincidence on 11 October 2018, instructed his team to seek a licence to use ‘We’re Not Gonna Take It’. No licence could be negotiated because Palmer ‘baulked at paying the licence fee’. This evidence contributed to an argument that Justice Katzmann variously described as ‘ludicrous’, ‘fanciful’, ‘implausible’ ‘preposterous’ and ‘smack[ing] of recent invention’.1
Her Honour was satisfied on the basis of ‘evidence…overwhelmingly in Universal’s favour’ that the music and lyrics of ‘Aussies Not Gonna Cop It’ were ‘taken from the chorus of ‘We’re Not Gonna Take It’. Palmer’s denials ‘def[ied] common sense, fl[ew] in the face of the contemporaneous documents, and were contradicted by the evidence [of] his own witnesses.’2
Having accepted that the lyrics were not independently created, and that both the music and lyrics of ‘We’re Not Gonna Take It’ and ‘Aussies Not Gonna Cop It’ were objectively similar, the Court considered whether the part of the music and lyrics copied was substantial. The question of substantiality is assessed with regard to the quality, rather than the quantity, of the part reproduced. Accordingly, a small but essential part of a copyright work may constitute a substantial part. While ‘Aussies Not Gonna Cop It’ is a short work, and the similarities are limited to the chorus of ‘We’re Not Gonna Take It’, Justice Katzmann found that the chorus was ‘the most prominent feature of the both the musical and literary work’.
Since the reproduction of a part of a work which is unoriginal is unlikely to constitute reproduction of a substantial part, Palmer also argued that the musical work in the chorus of ‘We’re Not Gonna Take It’ was not original because of its similarities to the Christmas carol ‘O Come All Ye Faithful’. He argued that it therefore could not form a substantial part of ‘Aussies Not Gonna Cop It’ and accordingly his reproduction of it was not infringing. The Court dismissed this argument, holding that there were ‘important musical differences’ between ‘We’re Not Gonna Take It’ and ‘O Come All Ye Faithful’, and that the former was an original musical work.
The parody or satire defence
Under s41A of the Copyright Act, a fair dealing with a literary or musical work does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire.
A dealing for the purpose of parody or satire requires the use of some elements of an author’s work to create a new work that comments on the original in a humorous or ironic manner. Justice Katzmann explored the minimal existing judicial guidance on the distinction between parody and satire, suggesting that parody involves an element of imitation whereas satire targets the original work with ridicule or derision.3
Palmer’s argument, which the Court described as ‘ambitious, to say the least’, was that his dealings with the works were satirical and fair. Meanwhile, Universal argued that the purpose of the infringement was to encourage Australians to vote for the UAP, not to parody or satire ‘We’re Not Gonna Take It’. Further, it argued, Palmer’s dealing with the copyright works was not fair.
The Court agreed that Palmer’s dealings in Universal’s copyright works were unfair and not for the purpose of satire. Justice Katzmann viewed Palmer’s dealings in the works as ‘merely capitalising on the notoriety or popularity’ of Twisted Sister’s song. In an emphatic finding that Palmer’s use of the song was ‘opportunistic’, Her Honour stated of Palmer’s infringement of the song:
He saw political and personal advantage in both its notoriety or popularity and the message it conveyed and he thought that he could get away with using it merely be altering some of the words. He was wrong.4
Though Justice Katzmann noted that a caption featured in one video advertisement describing Federal MP Barnaby Joyce as ‘New Zealander of the Year’ might be satirical, Her Honour was not satisfied that ‘an allusion to the so-called phenomenon of using the internet to watch cat videos’ nor videos in which Joyce ‘looks ridiculous’ or former Speaker of the House of Representatives Bronwyn Bishop ‘sports a silly expression’ rose to the level of satire. The relevant consideration was whether ‘We’re Not Gonna Take It’ was put to the purpose of satire. Justice Katzmann concluded that no dealings with the song were for this purpose, rather they were to promote the UAP and its electoral campaign. At most, it may have accompanied images used satirically.
Relief granted to Universal
Universal was awarded:
- damages calculated on the basis of a notional licence fee, which the Court assessed in the amount of $500,000;
- additional damages to punish and deter, which the Court assessed to be in the amount of $1,000,000, noting Palmer’s ‘flagrant disregard of Universal’s rights’, ‘contumelious’, ‘deeply upsetting’, ‘high-handed and contemptuous’ conduct and ‘indifferen[ce] to the truth’;5 and
- additional injunctive relief in the form of orders including a permanent injunction preventing Palmer from infringing Universal’s copyright in the music and lyrics of ‘We’re Not Gonna Take It’.
The decision sounds as a warning to intentional infringers – the Federal Court is Not Gonna Take It, and is not afraid to order payment of substantial additional damages.
HWL Ebsworth’s IP team has extensive experience advising on copyright issues.
This article was written by Luke Dale, Partner and Kelly Williamson, Solicitor.
1 [204], [208] and [219].
2 [197].
3 [289] – [297].
4 [329].
5 [525], [496], [497], [504] and [505].
