Copyright, patents and intellectual property

We’re not gonna take it Clive! 1.5M reasons not to infringe copyright

Malcolm Campbell ||

The Federal Court of Australia has found that the sound recording of the song ‘Aussies Not Gonna Cop It’ (Offending Song), and the video advertisements for the United Australia Party to which Offending Song was synchronised, each contain a reproduction of a substantial part of each of the musical work comprised in the song ‘We’re Not Gonna Take It’, composed by Twisted Sister’s Dee Snider (Original Song), and the lyrics of that song, also composed by Mr Snider (Literary Work).

What happened?

In about November 2018, Mr Palmer authorised the creation of a recording of the Offending song. He also authorised the synchronisation of the Offending Song with about 12 video advertisements for the UAP (UAP videos). During the 2019 Australian elections, the United Australia Party (UAP) campaign featured the Offending Song and UAP Videos.

The owner of the copyright in both the music and the lyrics of the Original Song is a member of the Universal Music Group (Universal). Palmer sought a license from Universal which was refused.

The substantive issue for the court was whether, by authorising the creation or the recording and its synchronisation with the video advertisements, Mr Palmer infringed the copyright in the Original Song and Literary Work.

Mr Palmer ultimately admitted that copyright subsists in the music of the Original Song as an original musical work and that copyright also subsists in the lyrics of the Original song as an original literary work. It was also not in dispute that if the UAP recording contains a reproduction of a substantial part of the music and/or lyrics of the Original Song, then Mr Palmer has infringed Universal’s copyright unless he has a defence. He relied on the defence of fair dealing for the purpose of parody or satire.

Parody or Satire

There is little detailed judicial commentary to clearly communicate what would be considered parody or satire and unfortunately her Honour does not provide any analysis that takes previous commentary substantively further save that she gave the following as a good example at [354]:

A good example of the use in a video of a musical work for a satirical purpose is provided in the article by Jani McCutcheon, “The New Defence of Parody or Satire under Australian Copyright Law” (2008) 2 IPQ 163 at 178.  It appeared in what Ms McCutcheon called “a manipulated video”, produced in the aftermath of the Iraq war, in which US President George W Bush and British Prime Minister Tony Blair appear to sing “Endless Love” by Lionel Ritchie, first recorded by Lionel Ritchie and Diana Ross. The purpose to which the song was put was to satirise the relationship between Bush and Blair.

Her Honour found that the UAP Videos were not a fair dealing nor for the purposes of satire or parody. In rejecting Mr Palmer’s defence of satire/parody, her Honour stated at [353]:

In any event, even if it could be said that any of the videos had a satirical purpose, it is the images that were said to be used for that purpose, not the copyright works as embodied in the UAP recording, and the UAP videos are only said to infringe Universal’s copyright to the extent that they incorporate 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. The [Original Song] 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.

Damages

Her Honour cited the decision in Winnebago Industries Inc v Knott Investments Pty Ltd (No 4) amongst others to distinguish the decision in Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (in liq) and conclude that ‘it does not matter whether Universal would have licensed the Original Song to Mr Palmer or whether Mr Palmer would have entered into a licence agreement. Either way, Universal is not limited to nominal damages. Rather, damages should be assessed by reference to a notional licence fee. In contrast to Aristocrat, Universal led evidence about the circumstances in which it would have granted a licence to Mr Palmer and as to its quantification.

If you have any questions about any of the information in the above blog, please do not hesitate to contact a highly skilled member of Coleman Greig’s Intellectual Property Team, who would be more than happy to assist you.

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