FEDERAL COURT OF AUSTRALIA
Universal Music Publishing Pty Ltd v Palmer (No 2) [2021] FCA 434
File number:
NSD 161 of 2019
Judgment of:
KATZMANN J
Date of judgment:
30 April 2021
Catchwords:
COPYRIGHT— Infringement — musical work and literary work constituted by a famous rock song used in multi-media advertisements for a political party in an election campaign — where no issue that each work was an original work and applicants were respectively licensor and owner of the copyright in each work, whether copyright in each was infringed by the use in the advertisements of a cover version of the chorus of the rock song — whether the parts that were taken were objectively similar — whether the impugned works were taken, copied or derived from the copyright works — whether a substantial part of the copyright works was reproduced — where the musical work shared a melodic contour with a well-known Christmas carol and other features that were typical of its genre, whether that part which was reproduced could be classed as substantial — whether the use of the song was “fair dealing for the purpose of parody or satire” within the meaning of s 41A of the Copyright Act 1968 (Cth)
COPYRIGHT— Damages — where a licence would not have been issued, whether damages under s 115(2) may be awarded under the “user principle” — where infringer entered into negotiations with licence holder before engaging in infringing conduct but did not agree to its terms and where discovery incomplete, whether additional damages under s 115(4) should be paid and, if so, in what amount
Legislation:
Copyright Act 1968 (Cth) ss 10, 14, 21, 31, 36, 40, 41, 41A, 42, 103AA, 103B, 115, 116
Copyright Amendment Act 2006 (Cth)
Evidence Act 1995 (Cth) s 140
Federal Court of Australia Act 1976 (Cth) s 23
Trade Marks Act 1995 (Cth) s 126
Copyright (International Protection) Regulations 1969 (Cth) r 4(1)
Copyright, Designs and Patents Act 1988 (UK) s 30
International Convention for the Protection of Literary and Artistic Works concluded at Berne on 9 September 1886
Cases cited:
ACHOS Pty Ltd v Ucorp Pty Ltd (No 5) [2013] FCA 1006; 103 IPR 51
Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (in liq) (2007) 157 FCR 564
Attorney-General (UK) v Blake [2001] 1 AC 268
Australasian Performing Rights Association Ltd v Monster Communications Pty Ltd [2006] FCA 1806; 71 IPR 212
Autodesk Australia Pty Ltd v Cheung [1990] FCA 121; 94 ALR 472
Autodesk Inc v Yee (1996) 68 FCR 391
Autodesk, Inc. v Dynason (No 2) (1993) 176 CLR 300
Bailey v Namol Pty Limited (1994) 53 FCR 102
Beloff v Pressdram Ltd [1973] 1 All ER 241; [1973] RPC 765
Blayney v Clogau St David’s Gold Mines Ltd [2003] FSR 19 (CA)
Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535; 383 ALR 202; 155 IPR 196
Briginshaw v Briginshaw (1938) 60 CLR 336
Broome v Cassell & Co Ltd [1972] AC 1027
Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420
CAJ Amadio Constructions Pty Ltd v Kitchen (1991) 23 IPR 284
Campbell v Acuff-Rose Music, Inc. 510 US 569 (1994)
Channel Seven Sydney Pty Ltd v Mahomed [2010] NSWCA 335; 278 ALR 232
Columbia Pictures Industries Inc. v Luckins [1996] FCA 542; 34 IPR 504
Computer Edge Pty Ltd v Apple Computer Inc. (1986) 161 CLR 171
Data Access Corporation v Powerflex Services Pty Ltd (1999) 202 CLR 1
De Garis v Neville Jeffress Pidler Pty Limited (1990) 37 FCR 99
Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416
Dixon Investments Pty Ltd v Hall ; [1990] FCA 477; 18 IPR 490
Eight Mile Style, LLC v New Zealand National Party [2017] NZHC 2603
Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd (2008) 172 FCR 580
EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444
Facton Ltd v Fifai Fashions Pty Ltd (2012) 199 FCR 569
Flags 2000 Pty Ltd v Smith [2003] FCA 1067; 59 IPR 191
Force India Formula One Team Ltd v 1 Malaysia Racing Team Sdn Bhd [2012] EWHC 616; [2012] RPC 29
Force India Formula One Team Ltd v 1 Malaysia Racing Team SDN BHD [2013] EWCA Civ 780; [2013] RPC 947
Francis Day & Hunter Ltd v Bron [1963] Ch 587
Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd (No 2) [2008] FCA 746; 76 IPR 763
Gaba Formwork Contractors Pty Ltd v Tuner Corporation Ltd (1991) 32 NSWLR 175
General Tire and Rubber Company v Firestone Tyre and Rubber Company Limited [1975] 2 All ER 173; [1975] 1 WLR 819
Geneva Laboratories Limited v Prestige Premium Deals Pty Ltd (No 5) [2017] FCA 63; 122 IPR 279
Gianoutsos v Glykis (2006) 65 NSWLR 539
Halal Certification Authority Pty Limited v Scadilone Pty Ltd [2014] FCA 614; 107 IPR 23
Henley Arch Pty Ltd v Lucky Homes Pty Ltd [2016] FCA 1217; 120 IPR 317
Hole v Bradbury (1879) 12 Ch D 886
Hubbard v Vosper [1972] 2 QB 84
IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458
InterfirmComparison (Australia) Pty Ltd v Law Society (NSW) (1975) 6 ALR 445
Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348
Inverugie Investments Ltd v Hackett [1995] 1 WLR 713; [1995] 3 All ER 841
Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273; [1964] 1 All ER 465
Lamb v Cotogno (1987) 164 CLR 1
Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International [2005] ZACC 7; [2006] 1 SA 144 (CC)
LED Builders Pty Ltd v Eagle Homes Pty Ltd [1999] FCA 584; 44 IPR 24
Lewis v The Australian Capital Territory [2020] HCA 26; (2020) 381 ALR 375
Luxottica Retail Australia Pty Ltd v Grant [2009] NSWSC 126; 81 IPR 26
Macmillan and Co Ltd v Cooper (1923) 93 LJPC 113
Marathon Asset Management LLP v Seddon [2017] EWHC 300 (Comm)
McCrum v Eisner (1917) 87 LJ Ch 99
Mergenthaler Linotype Co v Intertype Ltd (1926) 43 RPC 381
Meters Ltd v Metropolitan Gas Meters Ltd (1911) 28 RPC 157
Microsoft Corporation v Goodview Electronics Pty Ltd [2000] FCA 1852; 49 IPR 578
Muddock v Blackwood (1898) 1 Ch 58
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445
Network Ten Pty Limited v TCN Channel Nine Pty Limited (2004) 218 CLR 273
Nominet UK v Diverse Internet Pty Ltd (No 2) [2005] FCA 1773; 68 IPR 131
Pacific Enterprises (Aust) Pty Ltd v Bernen Pty Ltd [2014] FCA 1372; 321 ALR 715; 109 IPR 481
Phillips v Homfray (1871) LR 6 Ch App 770
Pokémon Company International, Inc. v Redbubble Ltd [2017] FCA 1541; 351 ALR 676; 129 IPR 1
Polygram Pty Ltd v Golden Editions Pty Ltd (1997) 76 FCR 565
Prior v Lansdowne Press Pty Ltd (1975) 29 FLR 59
Pro Sieben AG v Carlton UK Television Ltd [1999] 1 WLR 605
Ravenscroft v Herbert and New English Library Limited [1980] RPC 193
Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589; 29 IPR 236
Rosedale Associated Manufacturers Ltd v Airfix Products Ltd [1956] RPC 360
Sawkins v Hyperion Records Ltd [2005] EWCA Civ 565; [2005] 3 All ER 636; [2005] 1 WLR 3281
SH Hart and Co Pty Limited v Edwards Hot Water Systems (1985) 159 CLR 466
Stoke-on-Trent City Council v W & J Wass Ltd [1988] 1 WLR 1406
Strand Electric & Engineering Company Ltd v Brisford Entertainments Ltd [1952] 2 QB 246
SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466
Swordheath Properties Ltd v Tabet [1979] 1 WLR 285
TCN Channel Nine Pty Ltd v Network Ten Ltd (2002) 118 FCR 417
TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2001) 108 FCR 235
The New Zealand National Party v Eight Mile Style, LLC [2018] NZCA 596; 144 IPR 486
Time Warner Entertainments Co. v Channel Four Television Corporation Plc. [1984] EMLR 1
Truong Giang Corporation v Quach [2015] FCA 1097; 114 IPR 498
University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601
Vermont Microsystems Inc v Autodesk Inc 88 F 3d 142 (1996) (2nd Cir CA)
Watson, Laidlaw & Company Ltd v Pott, Cassels & Williamson (1914) 31 RPC 104
Whitwham v Westminster Brymbo Coal & Coke Company [1896] 2 Ch 538
Winnebago Industries Inc v Knott Investments Pty Ltd(No 4) (2015) 241 FCR 271
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448
32Red Plc v WHG (International) Ltd [2013] EWHC 315 (Ch)
Attorney-General’s Department, New Australian Copyright Laws: Parody and Satire (Attorney-General’s Department, Canberra, 2008)
Australia, House of Representatives, Debates, 19 October 2006
Australian Law Reform Commission, Copyright and the Digital Economy (Australian Law Reform Commission, 2013)
Castanaro V, “‘It’s the Same Old Song’: The Failure of the Originality Requirement in Musical Copyright” (2008) 18(5) Fordham Intell Prop Media & Ent LJ 1271
Davies D, Caddick N and Harbottle G (ed.), Copinger and Skone James on Copyright (17th ed, Sweet & Maxwell, 2016)
Edelman J (ed.), McGregor on Damages (21st ed, Sweet & Maxwell, 2020)
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Handler M and Rolph D, “A Real Pea Souper: The Panel Case and the Development of the Fair Dealing Defences to Copyright Infringement in Australia” (2003) 27(2) Melbourne University Law Review 381
McCutcheon J, “The New Defence of Parody or Satire under Australian Copyright Law” (2008) 2 IPQ 163
Meagher RP, Heydon JD and Leeming MJ, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (Butterworths LexisNexis, 4th ed, 2002)
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Wells THW, “Monetary Remedies for Infringement of Copyright” (1989) 12 Adelaide Law Review 164
Division:
General Division
Registry:
New South Wales
National Practice Area:
Intellectual Property
Sub-area:
Copyright and Industrial Designs
Number of paragraphs:
533
Date of hearing:
19–22 October 2020
Counsel for the Applicants:
Mr P W Flynn SC with Mr W H Wu
Solicitor for the Applicants:
Simpsons Solicitors
Counsel for the Respondent:
Mr E Robinson with Mr P Williams
Solicitor for the Respondent:
Alexander Law
ORDERS
NSD 161 of 2019 BETWEEN: UNIVERSAL MUSIC PUBLISHING PTY LTD
First Applicant
SONGS OF UNIVERSAL, INC.
Second Applicant
AND: CLIVE FREDERICK PALMER
Respondent
ORDER MADE BY:
KATZMANN J
DATE OF ORDER:
30 APRIL 2021
THE COURT DECLARES THAT:
1.The sound recording of the song “Aussies Not Gonna Cop It”, referred to in paragraph 9 of the applicants’ statement of claim filed on 6 February 2019 (UAP recording), and the video advertisements for the United Australia Party to which the UAP recording was synchronised, referred to in paragraph 10 of the statement of claim (UAP videos), 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 Daniel (“Dee”) Snider (the Musical Work), and the lyrics of that song, also composed by Mr Snider ( the Literary Work).
2.The respondent infringed the second applicant’s copyright in each of the Musical Work and Literary Work by:
(a)reproducing;
(b)authorising the reproduction of;
(c)communicating; and
(d)authorising the communication of
a substantial part of those works in Australia without the licence of the applicants.
THE COURT ORDERS THAT:
3.The respondent, whether by himself, his servants, agents or otherwise be permanently restrained from:
(a)reproducing;
(b)authorising the reproduction of;
(c)communicating to the public; and
(d)authorising the communication to the public of
the whole or a substantial part of the Musical Work or the Literary Work in Australia without the licence of the applicants.
4.The respondent take all necessary steps to:
(a)cause any and all reproductions of the UAP recording, including the UAP videos and any other video or audio recording that embodies the UAP recording, to be removed from all online locations controlled by the respondent or the United Australia Party (including on the websites YouTube and Facebook); and
(b)cause the communication of the UAP recording, including the UAP videos and any other video or audio recording that embodies the UAP recording, (including in advertisements for the United Australia Party) to cease.
5.The respondent deliver up to the applicants all unauthorised reproductions of the Musical Work or the Literary Work in his possession, power, custody or control, including the UAP recording and UAP videos.
6.Pursuant to s 115(2) of the Copyright Act 1968 (Cth), the respondent pay the applicants damages of $500,000.
7.Pursuant to s 115(4) of the Copyright Act, the respondent pay the applicants $1,000,000 in additional damages.
8.Within 14 days, the parties confer with a view to reaching agreement on the amount of interest payable on the damages pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth).
9.In the event that the parties are unable to agree on the amount of interest, the applicants file and serve submissions on the point by 28 May 2021 and the respondents file and serve submissions in response by 11 June 2021, no submissions to exceed three (3) pages.
10.The respondent pay the applicants’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Table of Contents
Introduction
[1]
The relevant statutory provisions and some general principles
[9]
The defence
[25]
The issues
[29]
The witnesses
[31]
The facts
[45]
WNGTI
[46]
Universal Music Publishing and Songs of Universal
[58]
Clive Palmer
[62]
Negotiations with Universal for a licence to use a “re-recording” of WNGTI
[66]
The development of the lyrics to ANGCI and the UAP recording
[97]
The evidence of Mr Wright and some further contemporaneous documents
[97]
Mr Palmer’s account
[110]
The UAP videos
[116]
The UAP’s advertising campaign
[120]
Reactions to the UAP videos
[123]
Universal complains to Palmer
[136]
The proceeding begins
[154]
The question of infringement
[169]
How is the question to be determined?
[170]
Step 1: What are the works in suit?
[171]
Step 2: What was taken, derived or copied from the works in suit?
[174]
Objective similarity
[178]
Causation
[194]
Step 3: Do the impugned works reproduce a substantial part of the copyright works?
[224]
The legal principles
[224]
Was the copied part a substantial part of the musical work?
[233]
Was the copied part a substantial part of the literary work?
[279]
Conclusion
[286]
Has the defence under s 41A been made out?
[287]
What is the scope of the defence?
[287]
The competing arguments
[314]
Were Palmer’s dealings fair for the purpose of parody or satire?
[321]
Conclusion
[356]
Relief
[358]
Damages under s 115(2)
[359]
The dispute
[359]
The nature of damages under s 115(2)
[365]
Is the user principle applicable?
[369]
The evidence
[398]
How should damages be calculated?
[451]
In what sum should damages be assessed?
[453]
Additional damages
[481]
The governing principles
[481]
Mr Palmer’s arguments
[490]
Disposition
[496]
Other relief
[527]
Conclusion
[532]
KATZMANN J:
Introduction
Daniel (known as Dee) Snider is the lead singer of Twisted Sister, a heavy metal band based in the United States of America. Mr Snider is also a composer and songwriter. Perhaps his most famous song, and certainly his most popular, is “We’re Not Gonna Take It” (WNGTI), which was first released in 1984. Clive Palmer is an Australian businessman with a keen interest in politics and the founder and leader of the United Australia Party (UAP).
The two men have little in common.
During the 2019 Australian elections, the UAP campaign featured the song “Aussies Not Gonna Cop It” (ANGCI). In about November 2018 Mr Palmer authorised the creation of a recording of that song (the UAP recording). He also authorised the synchronisation of the UAP recording with at least 12 video advertisements for the UAP (the UAP videos).
The music and lyrics of the WNGTI and ANGCI have a good deal in common.
The substantive issue in this case is whether, by authorising the creation or the recording and its synchronisation with the video advertisements, Mr Palmer infringed the copyright in WNGTI.
At all relevant times the owner of the copyright in both the music and the lyrics of WNGTI was Songs of Universal Inc., the second applicant in this proceeding. The first applicant, Universal Music Publishing Pty Ltd (UMP), is and was at all relevant times the exclusive licensee, that is to say, the holder of a written licence signed on behalf of the owner of the copyright authorising it, to the exclusion of all others, to do an act that, but for the licence, the owner would have the exclusive right to do: Copyright Act 1968 (Cth), s 10(1). In this judgment, unless it is necessary to distinguish between them, I shall refer to both applicants as Universal.
Although it was not his original position, Mr Palmer now admits that copyright subsists in the music of WNGTI as an original musical work and that copyright also subsists in the lyrics of the song as an original literary work.
It is common ground that, if the UAP recording contains a reproduction of a substantial part of the music and/or lyrics of WNGTI, 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.
The relevant statutory provisions and some general principles
Copyright is a form of property, commonly referred to as intellectual property although it is also a form of industrial property. Copyright in music was described uncontroversially in evidence in this case as a commercial asset from which income can be earned, among other things, through licensing for use in advertisements.
Copyright law protects the particular form of expression of an original work, namely a work which is “the product of the labour, skill and capital” of its creator: IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 at [28] (French CJ, Crennan and Kiefel JJ, citing Macmillan and Co Ltd v Cooper (1923) 93 LJPC 113 at 117–118 per Lord Atkinson); at [70] (Gummow, Hayne and Heydon JJ). The general policy of copyright is to prevent unauthorised copying of particular material forms of expression that are the result of “intellectual exertions of the human mind”: Sawkins v Hyperion Records Ltd [2005] EWCA Civ 565; [2005] 3 All ER 636; [2005] 1 WLR 3281 at [28] (Mummery LJ). But the protection is subject to numerous qualifications, exceptions, restrictions and defences, reflecting the purpose of copyright law, which is “to balance the public interest in promoting the encouragement of ‘literary’, ‘dramatic’, ‘musical’ and ‘artistic works’, as defined, by providing a just reward for the creator, with the public interest in maintaining a robust public domain in which further works are produced”: IceTV at [71] (Gummow, Hayne and Heydon JJ).
WNGTI was first published in the United Kingdom on 25 May 1984. Even so, as the UK is a party to the Berne Convention (the International Convention for the Protection of Literary and Artistic Works concluded at Berne on 9 September 1886), the provisions of the Copyright Act apply in relation to it in the same way as they apply in relation to works first published in Australia and as if it had first been published in Australia: Copyright (International Protection) Regulations 1969 (Cth), reg 4(1).
Part III Division 1 of the Copyright Act deals with the nature, duration and ownership of copyright in works, Division 2 with infringement.
The nature of copyright in original works is described in s 31, which relevantly provides:
(1)For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right:
(a)in the case of a literary … or musical work, to do all or any of the following acts:
(i) to reproduce the work in a material form;
(ii) to publish the work;
(iii) to perform the work in public;
(iv) to communicate the work to the public;
(v) to make an adaptation of the work;
(vi)to do, in relation to a work that is an adaptation of the first mentioned work, any of the acts specified in relation to the first-mentioned work in subparagraphs (i) to (iv), inclusive[.]
…
(2)The generality of subparagraph (1)(a)(i) is not affected by subparagraph (1)(a)(vi).
…
“Musical work” is not defined in the Copyright Act, save for certain unrelated purposes. In Sawkins at [53] Mummery LJ observed:
In the absence of a special statutory definition of music, ordinary usage assists: as indicated in the dictionaries, the essence of music is combining sounds for listening to. Music is not the same as mere noise. The sound of music is intended to produce effects of some kind on the listener’s emotions and intellect. The sounds may be produced by an organised performance on instruments played from a musical score, though that is not essential for the existence of the music or of copyright in it. Music must be distinguished from the fact and form of its fixation as a record of a musical composition. The score is the traditional and convenient form of fixation of the music and conforms to the requirement that a copyright work must be recorded in some material form. But the fixation in the written score or on a record is not in itself the music in which copyright subsists. There is no reason why, for example, a recording of a person’s spontaneous singing, whistling or humming or improvisations of sounds by a group of people with or without musical instruments should not be regarded as “music” for copyright purposes.
Later, at [56], his Lordship said that it was “wrong in principle to single out the notes as uniquely significant for copyright purposes and to proceed to deny copyright to the other elements that make some contribution to the sound of the music when performed, such as performing indications, tempo and performance practice indicators, if they are the product of a person’s effort, skill and time”.
A “literary work” is simply a written or printed work irrespective of its literary merit or lack of it: University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at 608 (which concerned examination papers); cited with approval in numerous cases including Computer Edge Pty Ltd v Apple Computer Inc. (1986) 161 CLR 171 at [11]. That point is underscored by s 10 of the Copyright Act in which literary work is defined to include a table or compilation expressed in words, figures or symbols and a computer program or a compilation of computer programs.
“Adaptation” is relevantly defined, also in s 10, in relation to a literary work in a non-dramatic form, as: a version of the work in a dramatic form and vice versa; a translation of the work; or a version of the work in which a story or action is conveyed solely or principally by means of pictures. “Adaptation” in relation to a musical work is relevantly defined in the same section to mean “an arrangement or transcription of the work”.
For the purposes of the Act, a literary or musical work is deemed to have been reproduced in a material form if a sound or “cinematograph film” recording is made of the work. Similarly, any record embodying such a recording and any copy of such a film is deemed to be a reproduction of the work: see s 21(1). This provision applies in relation to an adaptation of the work in the same way it applies in relation to the work itself: s 21(2).
“Reproduction” means copying and does not include the production of a substantially similar result by independent work, without copying: EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444 at [49]–[50], [121] (Emmett J) (EMI v Larrikin) citing Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 618 and 623-624 and SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 at 472.
Section 14 relevantly provides that, unless the contrary intention appears, any reference in the Copyright Act to the doing of an act in relation to a work or a reproduction, adaptation or copy of a work is to be read as including a reference to a substantial part of the work.
As for infringement, s 36 is applicable. Insofar as it is relevant, it states:
(1)Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.
(1A)In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in the copyright in a work, without the licence of the owner of the copyright, the matters that must be taken into account include the following:
(a)the extent (if any) of the person’s power to prevent the doing of the act concerned;
(b)the nature of any relationship existing between the person and the person who did the act concerned;
(c)whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.
In other words, unless the Act otherwise provides, anyone who is not the owner or licensee of the copyright in a work who reproduces (copies) that work in a material form, publishes it, performs or communicates it in public, or adapts it will infringe the copyright.
The Act provides for exceptions for fair dealing with works for certain purposes including, relevantly, parody or satire. Those exceptions are contained in Division 3. The exception for fair dealing for the purpose of parody or satire is covered by s 41A.
Remedies are dealt with in Part V, remedies for infringement in s 115.
The defence
The defence was filed on 20 March 2019. It was amended nearly 16 months later, on 28 July 2020, well after Universal’s evidence in chief had been served.
In the first iteration Mr Palmer denied that copyright subsisted in the musical work comprised in the song WNGTI. He contended that the musical work was “not an original musical work within the meaning of the Act” and denied that copyright subsisted in the literary work alleging that the UAP recording and videos use original lyrics and do not reproduce the literary work. In the alternative, he denied that copyright subsisted in the literary work on the ground that “the incorporation and reproduction of such works is fair dealing for the purpose of parody or satire” within the meaning of s 41A. He denied the allegations of copyright infringement on the same basis. He admitted that a licence was required for the use of the literary work, but denied it was required for the use of the musical work, and asserted that he had not used the literary work.
His position altered significantly with the filing of the amended defence.
In the amended defence Mr Palmer withdrew his assertion that the musical work was not an original musical work within the meaning of the Copyright Act and admitted all allegations relating to the subsistence and ownership of the copyright in both works. Nevertheless, he claimed that the UAP recording and videos did not incorporate a substantial part of the musical work or the literary work and therefore did not infringe Universal’s copyright. In the alternative, he claimed that the UAP recording and videos did not infringe Universal’s copyright because the incorporation or reproduction of the musical and literary works constituted “fair dealing for the purpose of parody or satire” within s 41A.
The issues
On 4 December 2019 I ordered that the parties file an agreed statement of facts and issues. A document answering that description was filed on 3 March 2020. An amended version was tendered at the hearing.
The final version of the agreed statement identifies the following questions for determination:
(1)Did the UAP recording and UAP videos contain a reproduction of a substantial part of the music and/or lyrics of WNGTI?
(2)If so, did any such reproduction fall within s 41A of the Copyright Act because it was fair in all the circumstances and made for the purpose of parody or satire?
(3)What relief should be granted if Universal’s copyright is found to have been infringed in the music or the lyrics or both, including:
(a)in what sum general damages should be awarded;
(b)should additional damages be awarded under s 115(4) of the Copyright Act and, if so, in what amount; and
(c)should injunctive relief be granted; and, if so, in what form?
The witnesses
Evidence was given on Universal’s behalf by Mr Snider, four Universal executives, one of its lawyers, a musicologist and a music industry expert.
Mr Snider affirmed four affidavits, one in support of an interlocutory application, and three in connection with the substantive dispute. In two affidavits affirmed on 1 February 2019 and 23 April 2019, Mr Snider discussed the history of the composition of WNGTI; the sale of the copyright to Universal; the approval process for the use of his songs in advertising; and the manner in which he became aware of, and his reaction to, the UAP advertisements. The fourth affidavit was affirmed during the course of the trial. It concerned a social media post by Mr Palmer after Mr Snider had testified. Mr Snider’s credit was not called into question in cross‑examination and no submission was made that his evidence should not be accepted. He impressed me as a witness of truth.
The Universal executives from whom affidavits were taken were Karen Ann Don, UMP’s Senior Vice-President (Legal & Business Affairs); Karina Jean Masters, UMP’s Director of Synchronisation & Marketing; Andrew Richard Charles Jenkins, the President of the Australia and Asia-Pacific region for Universal’s corporate group and a director of UMP; and Thomas Herbert Eaton, the Senior Vice-President of Music for Advertising of Universal’s corporate group. Their evidence covered a range of topics including the nature of the applicants’ businesses; Universal’s rights in WNGTI; action taken by Universal after becoming aware of the UAP advertisements; and Mr Palmer’s response; the considerations relevant to the licensing of music in advertising; correspondence with UMP on Mr Palmer’s behalf about licensing WNGTI; the approval process for use of US songs in advertising; and a hypothetical licence fee for the use of WNGTI in the UAP advertisements.
Sebastien David Tonkin, a solicitor, affirmed a number of affidavits in the proceeding, not all of which were read at the final hearing. Two of the affidavits read at the final hearing annexed or exhibited the UAP advertisements and various publications including media articles and social media posts about UAP’s advertising campaign, UAP advertisements, and this proceeding. Two other affidavits related to Mr Palmer’s non-compliance with discovery orders. The last in time, filed on 13 October 2020, detailed some of the information gleaned from the discovery and subpoenaed documents.
An affidavit was also provided by Karl Richter, the founder of an Australian music supervision (procurement) company which assists clients with selecting and sourcing music for use in various projects and which has been involved in sourcing music for advertisements for a wide range of products. Mr Richter gave independent expert evidence on a hypothetical licence fee for use of WNGTI in UAP advertising.
All these affidavits were read and all witnesses, with the exception of Ms Don and Mr Tonkin, attended for cross-examination.
Universal’s musicologist was Professor Andrew Ford, a composer, writer, broadcaster, and music scholar who has enjoyed a long academic career. He affirmed two affidavits, both of which were read, and was the co-author of a joint expert report. He also gave evidence in concurrent session with the musicologist retained by Mr Palmer.
Mr Palmer gave evidence. He affirmed two affidavits precisely one year apart and was extensively cross-examined. His musicologist was Dr Robert Davidson, a composer, double bass player, researcher, senior lecturer in music at the University of Queensland. Dr Davidson affirmed an affidavit on 14 August 2019 and was the co-author of the joint expert report.
Mr Palmer also relied on evidence from David Wright and James McDonald. Mr Wright swore two affidavits, Mr McDonald one. Mr McDonald was the National Director of the UAP during the relevant period. Mr Wright is the director of Creative Division Pty Ltd (trading as Atomic Pixel). He was engaged by the UAP to provide production services for its advertising campaign in the 2019 federal election. He was involved in the development of the UAP advertisements and deposed, among other things, to discussions with Mr Palmer and correspondence with Universal about a licence. In cross-examination it emerged that he had also run as a candidate for the UAP in the 2019 election.
During the course of the hearing, Mr Palmer’s solicitor, Sameh Morris Iskander, filed an affidavit. Annexed to that affidavit were documents which should have been discovered by Mr Palmer.
All the affidavits were read and, with the exception of Mr Iskander, each deponent was required for cross-examination. Unusually, Mr Palmer testified after the other two lay witnesses, Mr McDonald and Mr Wright. No explanation was offered but it is reasonable to assume that this unusual course had at least something to do with the fact that the hearing took place during the week before the Queensland election in which the UAP was fielding candidates in every seat.
While Mr McDonald was concerned to protect the UAP, I found him to be generally honest.
Mr Wright’s affidavits were not full and frank. On occasions during his oral evidence, his answers were punctuated by inappropriate giggles. I formed the view that these were nervous giggles. For the most part, however, I concluded that his oral evidence was truthful.
Mr Palmer, on the other hand, was a most unimpressive witness. In significant respects his evidence was inconsistent with the contemporaneous records and the evidence of both Mr Wright and Mr McDonald. I deal with his evidence at some length later in these reasons. It is sufficient to observe at this point that he was an unreliable witness whose evidence was at times incredible.
The facts
Many of the relevant facts were either admitted or not in dispute. Unless otherwise indicated, none of the facts set out below was controversial and I make findings accordingly. A good deal of the narrative is drawn from Universal’s meticulous written submissions which in these respects were not contradicted.
WNGTI
The WNGTI music is an original musical work and the WNGTI lyrics are an original literary work within the meaning of those terms in the Copyright Act.
Mr Snider is the author and composer of WNGTI. He started writing it in 1980. He finished it in 1984.
Mr Snider joined Twisted Sister in 1976 as its lead singer. He was also the band’s sole songwriter. Twisted Sister was active until 1987, when it broke up. It reunited in 1988 and its members continued to work together and perform publicly throughout the 2000s. It disbanded in 2016, shortly after the death of its drummer. Since then, Mr Snider has continued touring, both on his own and with a backup band, playing Twisted Sister songs as well as songs from his solo work. Mr Snider has also been involved in many solo projects, including hosting radio programs, appearing on several reality TV shows, and doing voice-over work for television, animation and computer games.
Until 1987, Mr Snider wrote all the music and lyrics to the songs he performed. Thereafter he wrote a number of albums in partnership with other songwriters. He gave unchallenged evidence, which I accept, that songwriting always came naturally to him. He explained that he felt he had something to say and knew how to say it. He also gave unchallenged evidence, which I also accept, that the integrity of his songwriting was, and remains, very important to him.
Mr Snider’s songwriting process almost always began with two elements: a title, which usually features prominently in the lyrics, and a short melodic idea, which is the first thing he would record. He would then flesh out the rest of the song musically, on a guitar, and write the other lyrics, which were strongly inspired by its title.
The process involved in the writing of WNGTI was no different. Mr Snider deposed:
In my usual process, working from a list of potential song titles that I had thought up, I sang the entire chorus of We’re Not Gonna Take It into a tape recorder – that is, the words “We’re not gonna take it. No we ain’t gonna take it. We’re not gonna take it, anymore”. At that point I could not come up with a satisfactory verse and bridge for the song so I put it to one side for future development and use. I knew I had something special in this song (even telling my band and our producer at the time Eddie Kramer that I had a “hit” in the works), so I needed to make sure the rest of the song was as strong as the chorus.
Over the next few years, whenever I was working on new song ideas, I would return to the chorus I had written for We’re Not Gonna Take It and try again to finish it properly. It was only in the winter of 1982 that I finally was able to complete it. Generally, while Twisted Sister was recording one release, I would be working on the songs for the following album. Throughout 1982 and 1983, I continued to “flesh out” We’re Not Gonna Take It (along with all the other songs for what was to become the album Stay Hungry, released in 1984). I did not present the song to the rest of the band until late in 1983, when we began demoing new songs for Stay Hungry. At no stage did any other person (including the other members of Twisted Sister) contribute to writing the music and lyrics of We’re Not Gonna Take It.
As with all my songs, the combination of words in the title of We’re Not Gonna Take It inspired everything else about the song, especially its lyrical content. As an angry, frustrated, younger man (I was 25 in 1980) I wanted to write a song to express not only my emotional state, but one which I felt was shared by our audience. I wanted it to be an anthem that everyone could sing or shout along to when they heard it.
Mr Snider’s musical influences are many and varied. He is unaware of ever having consciously copied a musical work or lyrics. As he readily acknowledged, however, he was inspired by others. At the time he wrote WNGTI, he recalls deriving inspiration from the Def Leppard 1983 album, Pyromania; such hard rock albums as Alice Cooper’s School’s Out; and the pop/rock anthems of the English rock band, Slade.
WNGTI was first released as a single on 27 April 1984 and then appeared on Twisted Sister’s third album, Stay Hungry, which was released on 10 May 1984. It was an immediate international commercial success. It reached no. 21 on the US Billboard Hot 100 singles chart, no. 6 in Australia, no. 5 in Canada and no. 2 in New Zealand. It was certified as a gold record in Mexico, Sweden and the US (where the Stay Hungry album achieved platinum status three times) and platinum eight times in Canada. It is generally regarded as Twisted Sister’s best and most popular song and its popularity has grown over the years, so much so, according to Mr Snider, that these days it is “practically a folk song”. It was Mr Snider’s most commercially successful song.
WNGTI has been licensed for use in musical theatre, films, and television, including the Broadway musical and film productions of Rock of Ages; advertisements for the film Charlotte’s Web (2006); films such as The Emoji Movie (2017) and Ready Player One (2018); and several television series such as Young Sheldon and Person of Interest. It has also been used for advertising purposes on many occasions and in various parts of the world. And Mr Snider has been asked to perform the song for major events on numerous occasions to diverse audiences and for a variety of causes.
As Mr Snider observed, WNGTI has “a strong message of defiance, but the lyrics are quite non-specific”. It was important to him that the message not be directed to any particular authority figures or causes. He believes that this generic quality contributes to the song’s enduring appeal. He has heard it played at sporting events, rallies, and protests “of all kinds”. According to Mr Snider, many people consider it one of the greatest songs of rebellion ever written. It has appeared on many lists on the subject.
Several American politicians have used WNGTI in their election campaigns. Mr Snider performed it for Arnold Schwarzenegger’s gubernatorial campaign, although to his knowledge it was not licensed for any recorded advertisements in the campaign. In 2012 Paul Ryan, then a candidate for president in the Republican primaries, used it at one of his campaign rallies, albeit without Mr Snider’s permission, but ceased to use it at Mr Snider’s request because Mr Snider did not want his song to be associated with Mr Ryan or his views and policies. Mr Snider believes that, more than any other of his songs, his image and personality are very closely associated with WNGTI.
In 2015 WNGTI was used as the theme song for Donald Trump’s first presidential campaign, initially with Mr Snider’s permission, which he said he granted because of his then-friendship with Mr Trump. Mr Snider explained that they had been involved in several charity projects together and he had appeared a number of times on Mr Trump’s reality television show, Celebrity Apprentice, and through them he came to like Mr Trump and his family. But when he found he was unable to agree with many of Mr Trump’s positions and policies and did not want others to think that he approved or endorsed his campaign, he asked him to stop using the song and Mr Trump obliged.
Universal Music Publishing and Songs of Universal
UMP and Songs are members of the global corporate conglomerate known as the Universal Music Publishing Group (UMPG). UMPG administers and in many cases (including licensing songs for use in advertising) controls as exclusive licensee the copyright in the songs in the UMPG catalogue. On 1 January 2019 UMP became the exclusive licensee in Australia of the copyright in WNGTI, with rights to sue for infringements before that date.
Universal has published Mr Snider’s music since the 1980s. He has always enjoyed a very good relationship with Universal which, he said, was built on years of trust.
In 2015 Mr Snider assigned the copyright in his songs, including WNGTI, to Songs, although he retained his interest in the so-called “writers share” or performing rights. Before and after the assignment of the copyright, Universal sought his approval for the synchronisation of his songs with visual material, such as in advertising or films. That was important to Mr Snider. As he explained it:
The song-writing process is a very emotional process for me; it comes from the heart. It would be devastating to me if any of my songs – but particularly We're Not Gonna Take It – were licensed for a purpose that I consider to be offensive or contrary to my beliefs, because I would feel like I was supporting a cause against my will. I want to prevent my music being used in association with products, companies or messages which I find objectionable. I view this as a fundamental and valuable part of my rights as a performer and songwriter.
Whenever I approve the use of one of my songs, I have to be satisfied that the proposed use would not damage my reputation or my commercial interests. Universal usually provides me or my management team with details about the proposed use, including who the prospective advertiser is, in order for me to make an informed decision. If I need more information, I ask for it.
That said, I try to take a pragmatic approach to potential licensing requests and am open to maximising the value of my songs. In the past, when I have been presented with a licensing opportunity that is not immediately attractive to me, I have looked for the positive characteristics of the brand or company and considered whether any such characteristics are sufficient to overcome my initial reluctance. This is particularly so if the licensing opportunity is for a significant sum of money.
Since the assignment of the copyright in 2015, Universal has regularly notified Mr Snider’s management of requests to use WNGTI, although the agreement with Songs does not require it.
Clive Palmer
Mr Palmer is a well-known Australian businessman. It is an agreed fact that he has a net worth exceeding AUD1 billion. Mr Palmer has been in business for over 40 years. He also has a keen interest in politics and has long been involved in it. He was a member of the National Party for nearly 40 years and for four years, following its amalgamation in Queensland with the Liberal Party, the Liberal National Party, before founding and leading the Palmer United Party. It is common knowledge that Mr Palmer served as a member of the House of Representatives in the Australian Parliament for the Queensland seat of Fairfax between 2013 and 2016 and that he was a candidate for the Senate on the UAP ticket in the last federal election.
In February 2018 Mr Palmer announced that the Palmer United Party would contest the 2019 election. In July 2018 the party was rebranded the UAP and registered with the Australian Election Commission. At all the relevant times Mr Palmer was its registered officer.
In around July 2018 the UAP began a nationwide media campaign in preparation for the 2019 election. To win support, it deployed various forms of media, including print, radio, television and online advertising, and text messaging. It also distributed T-shirts, worn by its members and supporters, upon the back of which the words “Aussie’s Aren’t Gonna Cop It Anymore” were printed. It fielded candidates in every seat in the House of Representatives and the Senate.
Although there is no direct evidence on the point, it is possible that Mr Palmer knew that the song had been used in the Trump campaign in 2016. Having regard to his long business career and keen interest in politics, Mr Palmer is likely to have followed the Trump campaign and may well have drawn inspiration from it. There is some support in the evidence for this. An appearance by Mr Palmer on the Nine Network’s Today program featured in a segment on the American television show, Last Week Tonight with John Oliver, which found its way into evidence in an exhibit to one of Mr Tonkin’s affidavits, admitted without objection. It is sufficient to refer to the opening:
OLIVER: But perhaps the most eye catching candidate is Clive Palmer, head of his own United Australia party. He’s a brash businessman who’s pushing a populist anti-establishment platform. If that’s already reminding you of someone, just wait till you hear him yelling at a news anchor.
[Cuts to clip from the “Today” show on Channel 9. Clive Palmer is on the Gold Coast and is wearing a suit with a red tie.]
PALMER: “We’ve got to stop about the fake news people attacking individuals. As I said, my wealth is $4,000 million dollars. Do you think I give a stuff about what you personally think or anyone else I might care about this country? God bless Australia. Put Australians first.”
OLIVER: Wow. That’s all pretty Trumpy right there. Arrogance, check, Red tie, check. He even has billboards with his campaign slogan “Make Australia Great”, which notably doesn’t say “Make Australia Great, again”.
[An image of Palmer sporting the thumbs up sign appears behind Oliver in front of billboard “Make AUSTRALIA GREAT!!”]
Negotiations with Universal for a licence to use a “re-recording” of WNGTI
In October 2018, Mr Palmer instructed Mr Wright to approach Universal to negotiate a licence to use in advertisements for the UAP a “re-recorded version” of the Twisted Sister track with possible lyric changes. It is an agreed fact that in his dealings with Universal Mr Wright was acting as Mr Palmer’s agent.
On 11 October 2018 Mr Wright emailed UMP with the following inquiry:
We have a major client that wishes to produce a local talent cover version of the Dee Snider track “We’re not gonna take it”. The usage would be specially for a national TVC campaign, and only a portion of the track would be used. I understand that UMPG acquired all rights to Twisted Sister back in 2015. Given that Dee Snider wrote the track I am making you the first port of call for this. I understand you may have rights to the recorded works, and the mechanical usage rights may differ.
Can you advise if you can help with this enquiry, or refer us to the entity that can help?
(Emphasis added.)
The “major client” was Mr Palmer.
The next day Selina Meuross replied, copying in Ms Masters, who was her supervisor. Ms Meuross confirmed Mr Wright’s understanding and invited him to complete an advertising licence request form which she attached to her email.
Later that day Mr Wright submitted a completed form, identifying his client as the UAP and the product being advertised as “United Australia Party – workers rising up concepts”. The term of the proposed licence was “ASAP until June next year”. The proposal was that the song would be used on the ABC, the internet, including the UAP website, and YouTube. The form provided the following information about the song:
On 16 October 2018, based on that limited information, Ms Meuross quoted a licence fee of $150,000+GST for eight months, subject to a signed contract and the approval of Mr Snider. The quote was valid for 30 days. But there was a proviso. Ms Meuross stipulated:
Please note that this is very much subject to writer approval, and before we send it off for clearance we will need the full creative, lyric changes, and name of the local artist that will be covering the song. The cover must strictly not be a sound-alike.
Mr Wright responded within the hour. He said that he would speak with “the client” and get back to her soon. He said he was “fine with not being a sound alike”, adding: “I had only gone down that path [that is, opted for a sound-alike] as I assumed it might be more difficult to get approval of the original recorded version with the original artists”. I interpolate that Ms Masters’ evidence was that a “sound-alike” in this context is a re-recording that sounds like the original master recording, the rights in which may be owned by an unrelated third party.
Mr Wright then inquired:
Is there any chance we can access that for a larger fee?
Ms Meuross replied:
Hi David, if you would like to use the original Twisted Sister master recording you will have to contact the master owner/record label (Warner Music) and liaise with them separately for a quote to use their recording. Of course if you do choose to use the original recording you won’t be able to change the lyrics/re-record your own version. We’ll also have to re-quote so let me know what the client decides to do.
As for the timeline, it’s really difficult to determine as it’s different for every case. Once we have the final terms laid out we will put it to the writers for approval straight away, and it can take up to a week or more for us to get feedback from them. If there is a tight deadline for this I would advise that the client decides what to do re the recording asap.
I interpolate that in cross-examination Mr Wright said that he understood from this email that Universal was now saying that they did not own 100% of the copyright and/or that “they were fishing for more fees”. It is clear that he understood the difference between publishing rights (the right to use the music), held by Universal, and mechanical rights (the right to use the master recording). Yet he purported to be taken aback by Ms Meuross’s reply. I do not consider this evidence credible in the light of his opening remark to Universal in his initial email, which indicated that he was aware of the possibility that Universal did not hold all the rights, in particular “the mechanical usage rights”.
In a subsequent email, also sent on 16 October 2018, Ms Meuross explained that the quoted fee reflected the fact that “this is a nationwide political advertising campaign that will use a premium song from our catalogue” and “the fact that it is a re-record”, albeit with lyric changes, “further increases the fee”. She asked Mr Wright to bear in mind that, if he did use “the master”, UMP’s fee would be lower but he would also have to pay Warner Music a separate fee on top of UMP’s publishing fee.
Ultimately, however, nothing came of either inquiry. Mr Palmer baulked at paying the licence fee. Mr Wright made a counter-offer of $35,000. UMP rejected the counter-offer and negotiations broke down.
Cross-examination of Mr Wright revealed that in the meantime he was developing some videos which incorporated WNGTI.
On 23 October 2018 Mr Wright sent an email to “Terry Smith” the text of which began with the words “Here is a new one for WNGTI” and contained a series of hyperlinks to “new and “revised videos for/of WNGTI”.
On 25 October 2018 Mr Wright sent another email addressed to “Terry Smith”, carrying the subject line: “FW: Current versions of WNGTI including WA GSt”. This email contained hyperlinks to the videos hyperlinked to the 23 October email as well as other emails with different themes.
On 27 and 29 October 2018 Mr Wright sent two further emails to “Terry Smith” containing hyperlinks to videos.
Not all the hyperlinks in the emails worked by the time of the trial. Mr Wright was cross‑examined about this but was unable to offer a reason. Some of the hyperlinked videos were in evidence. They were tendered by Universal. Each of those videos featured Twisted Sister’s original recording of WNGTI synchronised to images and text urging the viewer to “VOTE [1] UNITED AUSTRALIA PARTY”. Universal submitted that, given the references in the emails to “WNGTI”, it should be inferred that the other videos also featured the Twisted Sister recording of WNGTI. The inference is a reasonable one. No argument to the contrary was advanced. In the circumstances that is the inference I draw. It is also reasonable to infer that at this point in time Mr Palmer was contemplating using the original recording in the UAP videos.
Mr Wright testified that “Terry Smith” was an alias for Mr Palmer. Evidence admitted without objection, included in an exhibit to Mr Tonkin’s second affidavit, indicates that this was a name Mr Palmer used while acting as a shadow director of Queensland Nickel. The reason Mr Palmer felt that he needed to conduct this correspondence by concealing his true identity was not explored in cross-examination. But it is self-evident that he felt he had something to hide.
On the morning of 29 October 2019 Mr Wright apparently had a conversation with Ms Meuross in which she reiterated the position she had taken in her last email. Later that morning Mr Wright followed up on that conversation with an email.
In the email to Ms Meuross Mr Wright explained that the nature of political advertising is such that he was not able to divulge “our strategy in an open manner”, lest “the integrity of the campaign” be compromised. He went on to say:
I understand that you require some information. What I can reveal is the following; there would be nothing racist, sexist or misogynistic, religious, or anti LGBTI etc, and that the topics will be more about fiscal debate for equality and fairness for the masses within the various demographic’s [sic] areas. The intent is simple clean messaging with no spoken words.
15 Second EXAMPLE:
If we approve your requested fee of $150,000 fee, we need it to cover off until the election. We will need to extend the usage until 12 months to cover off in the unlikely case that they will call it very late. There are reasons that this is unlikely, regardless we need to cover off on that.
A high-quality combined artist session would be the basis of the recording. The members form a very strong 11-piece high energy power ballad band. It would not be a shabby rendition.
Once again the only change proposed to the lyrics of the chorus to WNGTI was in the first line (from “We’re” to “Australia’s”).
Ms Meuross replied early that afternoon. She said she was happy to make the term 12 months but would have to push the fee up to $160,000 to cover the extra four months. She also sought more information about the “strong images” that would be used. She said that once she received that information she would be happy to put the request before the writer (Mr Snider) for approval. She emphasised, however, that “the writer will need to see the final video or at least a final storyboard”, that this was Universal’s invariable practice and it was “non-negotiable”.
At 5.57pm Mr Wright emailed “Terry Smith” with hyperlinks to a number of videos including three “with word change”, presumably from “We’re” to “Australia’s” and four advertisements on various subjects “as approved”.
At 9.46am the next day, 30 October 2019, Mr Wright wrote back to Ms Meuross:
A little effort could be made to ensure client satisfaction. As the suggested fee is a premium for political use, it must come with the liberties and freedoms that are required for the short sharp turn around of a political campaign. No agreement can be considered to have the campaign vetted by an offshore writer/musician that is receiving a fee for license, or the fee receiving artists management. Even if your demand was not perceived as unreasonable for a political campaign, there is not enough time for such a drawn-out process.
This is a national campaign that is extended the courtesy of political due process by law.
The fiscal offer is as previously stated.
$150k for up to 12 months.
There is no agreement to third party entities approving our campaign elements. This is non-negotiable.
Please return by 3pm Friday the 2/11/18 with an approval if you would like to be considered for the new business. A decision will be made between the tracks that are being explored, and the ease of working with the supplier involved. To earn the account, there is a requirement that a supplier is working for us to streamline processes.
As Universal observed in their submissions several observations can be made about this email. First, Mr Wright was adamant that Universal and Mr Snider would not be permitted to approve the advertising in advance. Second, although Mr Wright referred to other tracks “being explored”, no evidence was given of what those tracks were and, if other songs were being considered, none was eventually selected for the UAP videos presumably because none of the possible alternatives had the benefits that WNGTI offered. Third, prior approval from the songwriter remained a sticking point for Universal. In cross-examination Mr Wright did not accept that this had led to an impasse in the negotiations. He purported to be unconcerned about the issue, saying “I knew that we were in a negotiation pattern, as one does in business …”. He testified, based on his experience, that even that would have been negotiable for the right price.
At this point Ms Masters entered the fray. Until then she had only been indirectly involved, having been copied into the correspondence. This time it was she who replied to Mr Wright, advising that the approval of the writer was “standard procedure for any synchronization use”, irrespective of the nature of the campaign; that Universal had the right to negotiate terms and quote on fees for the publishing rights they considered acceptable, based on terms and variations he might supply; and that if Mr Wright did not find those terms acceptable, he could select other music that was “easier to clear” for the proposed use. To this end she offered to put him “in touch” with Universal’s production music arm.
Two hours later Mr Wright replied:
Thank you for your response. We are hearing verbatim about the hurdles and obstacles set out in a pattern that leads to a high budget, but no client satisfaction. What we require is some initiative and an attempt to ensure client satisfaction is performed in a streamlined, non-intrusive, fair and reasonable manner.
Political strategy campaigns do not fall under the normal banner. Hence the additional fee loading you are proposing. If a premium is paid because it’s a political campaign, the fee covers certain considerations. To charge a premium because of something, and not allow consideration of that very thing can easily be seen as unconscionable and is definitely unreasonable.
The rights you refer to are the basis of an internal agreement with yourself and an artist and are not rights with your client. This is new business. With a client, you are at liberty to see if an agreement can be met where a fair and reasonable price for a usage, based on a given set of control parameters. If you have no client, you are not acting in the commercial interest of the firm, nor the artist.
Could you have some thought on how one could appease the ‘system’ that does not appear to be designed for Political Strategy campaigns, and still forge a relationship with a new business client and raise the annual turnover slightly.
Might I suggest we provide 1 x example mock up, and are given no go zones that the Writer feels he does not want the re-recorded, word altered version to represent? This to my mind still seems unreasonable considering we are being charged at the political rate, but it might be a valid lateral way of moving beyond your current hurdle, assuming you are actually interested in securing the business?
Ms Masters was unmoved. She told Mr Wright in a return email why UMP required “clear and precise creative details” and that the licence fee was not just affected by “the political context of the use” but also by the fact that the proposed use was for a “re-record” with a change in the lyrics. She said that these were “all fair and standard conditions of any licence” in which Universal enters, whether with a music supervisor, advertising agency, TV or film production company, or short-film maker. She also said that the writer was entitled “to view and approve the final creative as to how the song will be used” but at this stage she indicated that “[a] proposed storyboard would be fine”. If the client was not comfortable with this, she suggested he look at an alternative song that might be easier to clear.
This email went unanswered. It is an agreed fact that it was at this point that the negotiations broke down.
That evening Mr Wright emailed Mr Palmer (“Terry Smith”). In that email he provided the following “copyright update”:
Universal are still being sticklers for their rules regarding us showing all our concepts to the writer in order to seek approval for his music. Whilst that’s not an issue for soap powder, it’s a big issue for us because we don’t want to expose our deck to anyone too early. I doubt he has any political alliances within Australia, but we could not assume the same with the music publishers. At least I would not assume that.
I note that It [sic] was used for Schwarzenegger’s campaign and Dee Snider agreed with the usage in 2003. In 2012 Snider asked Republican vice-presidential running mate Paul Ryan’s camp not to play his hit song in their campaign. Its also been used for a teacher strikes and for and Pro-Choice campaigns, which he approved.
I also noted that he is also a performer for hire, and this is managed via a different agent. Perhaps this is another avenue to communicate with him, but the final negotiation here in AU appears to sit with Universal.
Interestingly, he is doing a smaller sized tour here in Australia from January to audiences ranging from 550-1000 PAX, which I understand are sold out since August this year.
Mr Wright claimed in evidence that his only concern was that the UAP’s proposal might “leak”. But the email indicates that he was also keen to secure Mr Snider’s approval. At the same time his evidence revealed that he was also concerned that obtaining his approval would have “delayed the process” and delays in a political campaign are undesirable.
The development of the lyrics to ANGCI and the UAP recording
The evidence of Mr Wright and some further contemporaneous documents
In his first affidavit Mr Wright said nothing about the development of either ANGCI or the UAP recording. In his second affidavit he said that ANGCI, as used in the advertisements, was performed by session musicians he had arranged to perform it. He deposed to telling these musicians in “a couple of short telephone conversations” not to take their performance too seriously, to give the song “a good belt”, to sing it “like an old 80’s rocker” and to “have some fun with it”. He also deposed that he told them that the performance style should be “in your face” but that “it should not be an exact sound-alike of the vocals in We’re Not Gonna Take It”, consistent with the request made by Universal.
A somewhat different picture emerged in cross-examination, a cross-examination apparently based on discovered documents. The failure to provide a full and frank account of the history in evidence in chief reflects adversely on his credit.
For a start, Mr Wright did not arrange for the session musicians to perform ANGCI.
Rather, the cross-examination revealed that Mr Wright instructed local session musicians to perform a number of takes of (the chorus of) WNGTI with variations. It is not clear when those instructions were given or the order in which the takes were recorded. But the recordings were completed by 13 November 2018, within two weeks of the breakdown in negotiations for the licence. Mr Wright testified that there were 14 takes and 14 recordings were tendered. The effect of Mr Wright’s evidence is that he regarded “cop” as a variation of “take”.
Mr Wright sent the recordings to Mr Palmer for his approval on 13 and 14 November 2018. They were dispatched in two emails to the “Terry Smith” account.
The first email began in this way:
Hi Clive,
MUSIC
Here is a link to a series of takes for ‘we ain’t gonna take it’. They are about 8 megs each so I could not easily email them as clips, but you can right click and download from each file here.
The hyperlink to the files followed.
The second email attached another hyperlink and included this message (without alteration):
I am not sure the cop it one is the best as it sounds like ‘we’re not going to carpet’. Good if we were advertising floor tiles. You can’t unhear this now. J
In their submissions Universal described the evolution of ANGCI from WNGTI in the following way, based on the electronic files which became Exhibit E. Mr Palmer did not take issue with the description. Version 1 below is virtually identical to the chorus of WNGTI. Version 6 is the one upon which Mr Palmer settled.
V1_LYRIC_1.WAV / V2_LYRIC _1.wav (Version 1)
We’re not gonna take it
Oh no, we ain’t gonna take it
We’re not gonna take it
Anymore(x2)
V1_LYRIC_5.wav / V2_LYRIC _5.wav
We’re not gonna take it
[You know] we’re not gonna take it
We’re not gonna take it
Anymore(x2)
V1_LYRIC_4.wav / V2_LYRIC _4.wav
Australia ain’t gonna take it
No Aussies are not gonna take it
We’re not gonna take it
Anymore(x2)
V1_LYRIC_7.wav / V2_LYRIC _7.wav
Australia’s not gonna take it
Aussies not gonna take it
We’re not gonna take it
At all(x2)
V1_LYRIC_6.wav / V2_LYRIC _6.wav
Australia ain’t gonna take itAustralians are not gonna take it
Aussies not gonna take it
At all(x2)
V1_LYRIC_2.WAV / V2_LYRIC _2.wav (Version 6)
Australia ain’t gonna cop it
No Australia’s not gonna cop it
Aussies not gonna cop it
Anymore(x2)
V1_LYRIC_3.wav / V2_LYRIC _3.wav
Australia ain’t gonna cop it
No Australia’s not gonna cop it
Aussies not gonna cop it
At all(x2)
On 16 November 2018, and with apparent indifference to the want of a licence, Mr Palmer authorised the creation of the UAP recording, which Universal described as “a cover version” of WNGTI.
That day, Mr Wright emailed Mr Palmer, again to the account of “Terry Smith”, with the subject line:
WGTI Daves remix version – raised vocals
Mr Wright informed Mr Palmer that he had “done a remix of this at [his] end to broadcast – 12 mastering lever, and raised the voice a little in the process”. He asked Mr Palmer whether that was an improvement as far as he was concerned and indicated his view that “this version sounds quite a lot better ...”. The body of the email also contained a hyperlink which was not working at the time of the trial. Mr Palmer responded within hours: “Well done that it [sic]”.
A couple of hours later, Mr Wright sent another email to Mr Palmer with the subject line:
WNGTI with COP in graphics and Musician reimbursement
The email contained a hyperlink to “a tester version with the word ‘cop’ in the graphic to match” and sought authorisation for the musicians to be reimbursed. The hyperlink was inaccessible. In cross-examination Mr Wright accepted that the subject line was a reference to WNGTI “with the lyric variation whereby ‘cop’ is substituted for ‘take’” and the word “cop” also appeared in the graphics. Mr Wright conceded, in effect, that Mr Palmer had approved the change.
In cross-examination Mr McDonald confirmed that ANGCI was an evolution from WNGTI. He testified that, before he sent the letter to Universal on 8 January 2019, Mr Palmer told him that he had written the words to ANGCI by taking words used in the chorus of WNGTI and changing them. Mr Palmer did not deny that he had said this to Mr McDonald or suggest that Mr McDonald was mistaken. He merely claimed not to remember saying so.
Mr Palmer’s account
Mr Palmer said nothing in either of his affidavits about the source of the music used in the UAP recording or his involvement in the production of the UAP recording.
In his first affidavit Mr Palmer gave the following account of the creation of the impugned works:
In or about September 2018, I was sitting at home preparing for the upcoming Federal election and what the party was trying to achieve for ordinary Australians. While deep in contemplation, I wrote the words for “Aussies Ain’t Gonna Cop It”; that is, the words:
“Australia ain’t gonna cop it;
No Australia’s not gonna cop it;
Aussies not gonna cop it, anymore.
The words instantly resonated with me and the views and values of the UAP. The party was formed because of the disenfranchisement with the major party duopoly in Australia and the views many Australians hold — that there is a lack of proper representation in government. The words perfectly supported the values of the party and members of the party agreed.
He acknowledged no debt to Mr Snider or WNGTI. In cross-examination he denied any such connection.
In his first affidavit, presumably to underscore the point he wanted to make, namely that ANGCI was an original work which he had composed (no other relevant purpose being evident), under the heading “original works” Mr Palmer waxed lyrical about his creative side. While his counsel elected not to read this passage, much of it was cross-examined into evidence. Mr Palmer professed to have “a keen interest in the publication of original poetic works”. He claimed to have “regularly published poetic works”, and to have been invited to share his poetic works at the Queensland Poetry Festival, works he said were “considered to be very moving and genuine” (according to his wife).
In a non-responsive answer to a question he was asked in cross-examination, he volunteered the following explanation for his source:
I remember seeing the Peter Finch movie, where he said, “we’re not gonna take it anymore”, in one of those scenes. And he repeatedly stated that in a scene in the movie – “we’re not gonna take it anymore, we’re not gonna take it anymore”, because he – I think – before he committed suicide on the TV station he was supposed to beat. This was in the movie, Network, that was produced about 1977. So from that, I developed the idea – Australians are not prepared to accept it – I thought that was a similar type thing that I worked that back, and ended up with these words.
(Emphasis added)
This evidence appeared to take everyone else in the virtual courtroom by surprise.
The UAP videos
At least 12 UAP videos were made and used in the UAP’s advertising campaign. The effect of Mr Wright’s evidence is that the form and content of the UAP advertisements were finalised sometime between 16 November and 2 December 2018. Mr McDonald testified that one of the advertisements was “run” on YouTube in November. Having regard to the evidence above regarding the creation of the UAP videos, in all probability they were all finalised by the second half of November. The UAP videos were first broadcast on television on 2 December 2018.
Those videos contain the following slogans: (a) “AUSTRALIANS TO RUN AUSTRALIA / FOR AUSTRALIANS”; (b) “BANKING RIP OFFS / WE’RE NOT GONNA COP IT”; (c) “$55 Billion spent on NBN / STILL DOESN’T WORK”; (d) “Getting 80% of GST back! / WA PEOPLE ARE WORTH 100%”; (e) “LABOR & LIBERAL HAVE SPENT $55 BILLION ON THE NBN / NOTHING TO FEED YOUR ANIMALS”; (f) “NETWORK AND POWER RIP OFFS / WE’RE NOT GONNA COP IT”; (g) “NEW ZEALANDER OF THE YEAR”; (h) “NO MORE FOREIGN CONTROL OF POLITICIANS”; (i) “NO MORE WASTE OF TAXPAYERS’ MONEY / STOP POLITICAL PERKS!”; (j) “SOD OFF SHORTEN’S TAXES / WE’RE NOT GOING TO COP IT”; (k) “STOP THE SALE”; and (l) “WANT STABILITY?”.
The UAP videos have the following common features. First, the UAP recording is played throughout and it is the only audio in the videos apart from minor sound effects and the authorisation statement at the end. Second, the authorisation statement “[a]uthorised by Clive Palmer for the United Australia Party, Brisbane” appears on the screen. Third, before the authorisation statement, the videos conclude with an animated version of the UAP logo mark and the tag line: “VOTE [1] UNITED AUSTRALIA PARTY”.
On YouTube and Facebook, each UAP video is shown on a webpage with accompanying text which often contains a message to support or join the UAP or to vote for the UAP at the forthcoming election.
The UAP’s advertising campaign
Mr Palmer authorised the broadcast and communication of the UAP recording and videos on television, radio and online streaming.
According to Mr McDonald, total expenditure on the UAP advertising campaign was “something in the order of $80 million”. As at 11 January 2019 prepaid expenditure on broadcast advertising was $12 million. Documents discovered by Mr Palmer indicate that the UAP videos were broadcast on television over 18,600 times, constituting some 20.6% of total broadcasts in the campaign. Mr Tonkin’s unchallenged evidence, given in his first affidavit sworn on 17 April 2019, was that in total the UAP videos had been viewed on YouTube and Facebook more than 17.5 million times.
The UAP videos published on the internet were not geo-locked to Australia and could therefore be accessed from overseas.
Reactions to the UAP videos
Mr Snider became aware through social media of the UAP videos/advertisements. He first became aware of the UAP advertisements on 31 December 2018 because his Twitter followers were up in arms about them. Numerous tweets were annexed to his second affidavit, such as:
Ÿ@deesnider Just interested to know: Did you and / or your recording company give permission to Australia's Clive Palmer’s United Party to use the melody to “We’re Not Going To Take It” with revised lyrics? Just saw Palmer's ad on Aussie tv.
ŸIt’s cringeworthy. Please get it taken off the air.
Ÿ@deesnider did you know that Australian political party @UnitedAusParty is using a parody of “We’re Not Gonna Take It” in their political commercials? It’s not a good look.
Ÿ@deesnider Hey mate just wondering if you know that we’re not gunna take it is being used for a right wing political party in Australia
ŸHe’s the last bloke on earth you’d want to be associated with.
Ÿ@deesnider Have you authorised Clive Palmer to use your song for his political party in Australia?
Ÿ@deesnider Gday Dee from Australia I'm not sure if you know we have a politician (Clive Palmer) that is very much like Trump doing political advertising with your song “We’re not gonna take it” I’m not sure if he and his party have permission to use it ...
Ÿ@deesnider @BoyGeorge ok gents, time to fire legal teams up and put a-stop to this Clive Palmer nonsense @clivepalmerm It’s destroying your music for thinking Australians!!!
ŸPlease @deesnider tell us you know nothing about @PalmerUtdParty butchering “We’re Not Gonna Take It” for their horrendous political commercial. @CliveFPalmer is well known for not paying bills so odds are he didn’t pay #twistedsister either
At around the same time, Twisted Sister’s guitarist and manager, John “Jay Jay” French, told Mr Snider that the band’s website and social media were being bombarded with objections to them “letting” Mr Palmer use their song. Mr Snider deposed that their Australian fans were “incensed”. Five emails to Twisted Sister were annexed to Mr Snider’s second affidavit, the substance of which read as follows (without alteration):
ŸAre you aware that your tune is being used for a political campaign (TV) here in Australia?
If you are, good luck to you!
If not, this guy has a habit of leaving employees, contractors and suppliers out of pocket. Be warned.
In either case, this does not put your band in a great light.
Sorry I can not post a link to the ads, they appear to be on TV only.
[A link to the UAP website was included.]
ŸDid you really give permission to Clive Palmer’s ‘United Australia Party’ to use your song ‘We’re Not Gonna Take It’ (with altered words) in their election advertising or has he just helped himself to it as he seems to feel entitled to do whatever he wants? No need to reply to this email. Just wanted to make you aware.
ŸQuery from a concerned fan – is the band aware that a narrow minded, bigoted political party in Australia called the United Australia Party led by entitled rich man Clive Palmer is using their song (or a differently worded version) for their political campaign? I thought “We’re not gonna take it” is about fighting the man? Clive Palmer and his party are by definition the oppressive man with their boot on the neck of those in need or who are different .... I really hope Twisted Sister do not endorse them.
ŸHi we got someone using one of your songs in their political advertising. He’s a real piece of work that’s screwed over works. If you do have an agreement I was wondering if he disclosed his bad reputation before getting this association. However if there is no agreement for the royalties of where not going to take it. I’m more than happy to tell you who to send the cease and desist to.
ŸHi there ...
I was just writing to express some ... well ‘A’ concern!
A complete scum of the earth politician by the name of Clive Palmer is using ‘We’re Not Gonna Take It’ for his campaign here in Australia. Do the band know this?
Either way (they do or they don’t), then they should know that this politician is a complete sleeze bag who has only two interests .... 1) getting power; and 2) in getting wealthier (he is already extremely wealthy!!!) Not the kind of person TS should would want to be associated with!!!
Please don’t let this creep get away with this crap!!!
The complaints continued even after the dispute with Universal became public.
Mr Snider deposed that, after he became aware of the videos, he immediately watched one of the advertisements. He was “horrified” to hear the use of WNGTI “with slightly revised lyrics”. He proceeded to explain why:
Not only was my song being misappropriated and misrepresented, but the production of the advertisement on every level was horrendous: the poor lyrics, the poor quality vocals and the poor production values as well as the context of what appears to be a cheap advertisement for a party whose values I knew nothing about. I think the vocal style used by the singer in the advertisements is trying to emulate mine, and that the whole audio recording is a low-quality ‘sound-a-like’ of the original recording …
I now turn to the third matter, the question of quality control.
It is not apparent which witnesses Mr Palmer had in mind in making the submission that a number of Universal’s witnesses took into account the absence of a quality control provision in determining a reasonable licence fee. Certainly, neither Mr Jenkins nor Mr Richter appear to have done so and no such suggestion was put to them in cross-examination.
Mr Eaton did not expressly take into account the absence of a quality control mechanism in his consideration of a reasonable licence fee for WNGTI. On the other hand, he said that he generally considered details of a proposed use in advertisements including creative materials such as a “a script, any lyric changes, a storyboard or an early or even final version of the advertisement”. In providing his opinion on a reasonable licence fee, he did take into account the lyric changes to WNGTI but at the same time noted that Mr Snider had previously agreed to certain lyric changes.
But Ms Masters made it clear that she took into account the poor quality of the infringing use.
At trial in the National Party case, expert witnesses called by the copyright owner to give evidence about a hypothetical licence fee were asked to make assumptions about the effect on the fee of lack of control and denigration of the original work by the licensed work (see National Party at [106]). The primary judge, Cull J, noted at [330] that “the hypothetical licence will reflect the terms and conditions in fact used”, so that “the royalty might be more expensive to compensate for the greater risk to the licensor in licensing without quality control provisions commonly found in actual licences”. Her Honour took this from the judgment of Newey J in 32Red Plc. On appeal, however, the Court said at [43] that it was not at all clear that this was an approach endorsed by Newey J. In the National Party case at [97] the Court of Appeal considered it unsurprising that a quality control provision would feature in an actual licence negotiation which envisages prospective licensed use, but held that a provision of this kind could not be effective with respect to a notional licence fee because “the hypothetical user principle” operates retrospectively — after the infringement. At [104]–[105] the Court explained:
The hypothetical licence addresses a retrospective and hence a known use. It assumes that the licensor is a willing participant. While we recognise that the licence is an artificial construct, we consider that it is unrealistic to incorporate an assumption about the presence or otherwise of a control provision, the absence of which would serve no other purpose than to elevate the licence fee. We are fortified in that conclusion given that in this case the inability to exercise control said to follow from the absence of a relevant provision is directed to the claimed poor quality of the infringing use.
It strikes us as a somewhat perverse outcome that a flagrant infringement in the form of a complete replication of Lose Yourself [the work in question in that case] would not be the subject of complaint by reference to the absence of a quality control provision whereas an inferior copy would generate an increased licence fee. If alleged denigration of the original work is the concern, then in our view a claim for damages under s 125 of the Act [infringement of moral rights] would be a more appropriate recourse than incorporating an uplift to the hypothetical licence fee on account of the absence of a quality control provision in the licence.
For these reasons the Court held at [106] that, by making assumptions about both lack of control and denigration of the original work by the licensed work, Eight Mile’s expert witnesses inappropriately elevated the hypothetical fee.
I propose to follow the National Party case and disregard the question of quality control for the purpose of determining a notional fee.
I now turn to the considerations that can and should be brought to bear to determine the notional licence fee. The references to advertisements below are references to the UAP videos to which the UAP recording was synchronised.
First, the song is a valuable commodity for Universal. Its popularity has endured over the decades since its original release.
Second, the value to Mr Palmer of the use of the copyright works was considerable. As Mr Richter observed, using a popular and instantly recognisable rock anthem gave the UAP videos powerful and far-reaching cut-through. And the lyrics perfectly aligned with the message Mr Palmer wished to convey.
Third, the copyright works had not previously been used in advertising in Australia.
Fourth, they were used for political purposes by a controversial figure.
Fifth, the works were deployed in multiple advertisements and featured prominently in all of them.
Sixth, the advertisements were shown frequently throughout Australia and on a variety of platforms including free to air television, the UAP website, YouTube and Facebook.
Seventh, the campaign lasted for a period of about six months.
Eighth, the notional licence extends only to the chorus of WNGTI, but as I have already discussed, the chorus is a substantial part, both quantitatively and qualitatively, and the song’s most memorable feature.
Ninth, there is a risk that some people will continue to associate WNGTI with the UAP and Mr Palmer, but I think it likely that the association will diminish over time.
I note that in the National Party case at [70]–[71] the NZ Court of Appeal accepted that a higher fee can reasonably be sought for certain types of use which may be seen as likely to have a polarising effect on the community or sections of it and a political use is one such case. But the Court considered (at [72]) that a distinction should be drawn between a type of use which has “an inherent divisive quality”, and therefore viewed objectively would warrant a higher fee, and a licensor’s subjective reluctance to agree to a licence because the message the subject of the advertisement is not one the licensor personally endorses. It seems to me that this approach is sound. It is consistent with the first factor mentioned by Copinger at [21-292] (see [451] above) and the assumption behind the notional licence, namely that the licensor is a willing party. Since Universal’s witnesses all took into account matters which should not be considered in determining a notional licence fee, their figures were excessive.
Having regard to all relevant matters and making due allowance for the possibility of alternative options, I assess the notional licence fee and Universal’s s 115(2) damages at $500,000.
Additional damages
The governing principles
Section 115(4) of the Copyright Act provides that, where an action for infringement of copyright is established and the court is satisfied that it is proper to do so, having regard to certain matters, the court may, in assessing damages for infringement, award such additional damages as it considers appropriate in the circumstances. The matters to which the Court must have regard in determining whether to award additional damages are listed in para 115(4)(b). They are:
(i) the flagrancy of the infringement; and
(ia) the need to deter similar infringements of copyright; and
(ib)the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff’s copyright; and
(ii)whether the infringement involved the conversion of a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form; and
(iii)any other benefit shown to have accrued to the defendant by reason of the infringement; and
(iv)all other relevant matters[.]
The effect of the subsection is that the power to award additional damages is enlivened by proof of infringement and the court’s satisfaction that it is proper to exercise it and the amount is limited only by what the court considers is appropriate in the circumstances taking into account the matters listed in para 115(4)(b).
The “flagrancy of the infringement” has variously been described as “scandalous conduct, deceit and such like” and includes “deliberate and calculated copyright infringements” (Ravenscroft v Herbert and New English Library Limited [1980] RPC 193 at 208 per Brightman J) and “calculated disregard of the plaintiff’s rights, or cynical pursuit of benefit” (Prior v Lansdowne Press Pty Ltd (1975) 29 FLR 59 at 65 per Gowans J). Clearly, if the infringer held a mistaken belief that he or she owned the copyright in the works or acted in the bona fide belief that no copyright subsisted in the plaintiff’s work, the conduct is not flagrant: Polygram Pty Ltd v Golden Editions Pty Ltd (1997) 76 FCR 565 at 575 (Lockhart J).
Both Universal and Mr Palmer drew on Aristocrat as a convenient summary of the relevant principles. There, at [40]–[45] Black CJ and Jacobson J made the following points (see, too Rares J at [113]–[116]):
(1)Flagrancy is not an essential prerequisite. It is enough that the Court is satisfied that any one or more of the matters listed in s 115(4) are made out.
(2)The objectives of an award of additional damages include deterrence and a penal element is involved.
(3)Additional damages may be awarded on principles corresponding to those governing awards of aggravated and exemplary damages at common law.
(4)The amount of additional damages need not be proportionate to the damages awarded under s 115(2).
I have omitted from this summary the authorities to which their Honours referred. One of them was Autodesk Inc v Yee (1996) 68 FCR 391 at 394 in which Burchett J noted in this context that in copyright legislation, at least since the 18th century, the infringer has been regarded as a “pirate” who should be treated accordingly.
In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471 Brennan J said that:
As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories … The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v. Cassell & Co. “to teach a wrong-doer that tort does not pay”.
In Lamb v Cotogno (1987) 164 CLR 1 at 9 Mason CJ, Brennan, Deane, Dawson and Gaudron JJ cited this passage with approval. At the same time their Honours observed that the object or effect of exemplary damages is “not wholly punishment and the deterrence which is intended extends beyond the actual wrongdoer and the exact nature of his wrongdoing”. In other words deterrence is both specific and general. As Rares J put it in Aristocrat at [116], one of the important purposes of an award of additional damages under s 115(4) is to firmly discourage both the infringer and others from engaging in practices of the kind in which the infringer has engaged.
I should note, however, that, although additional damages may be awarded on principles corresponding to those governing awards of aggravated and exemplary damages at common law, the power given by s 115(4) is not constrained by those principles. As White J observed in Luxottica Retail Australia Pty Ltd v Grant [2009] NSWSC 126; 81 IPR 26 at [39], in contrast to additional damages, aggravated damages are not recoverable by a corporate plaintiff and exemplary damages are an exceptional remedy only awarded where the defendant has acted in contumelious disregard of the plaintiff’s rights. Hence additional damages have been described as “of a type sui generis”: Facton Ltd v Fifai Fashions Pty Ltd (2012) 199 FCR 569 at [36] (Lander and Gordon JJ).
The “other relevant matters” with which para 115(4)(b)(iv) is concerned include:
·the conduct of the defendant with respect to the infringement;
·the motive for the infringement;
·the injury to the plaintiff’s feelings for suffering insults, indignities and the like; and
·the plaintiff’s corresponding behaviour.
See Polygram at 576, citing Beloff at 267 (Ungoed-Thomas J). In other words, the “other relevant matters” include the kind of matters that a court would take into account in awarding aggravated damages at common law, discussed for example in Broome v Cassell & Co Ltd [1972] AC 1027 at 1089 (by Lord Reid) and at 1124 (by Lord Diplock). As Lord Diplock put it in Broome at 1124, “[a]dditional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the defendant did it”.
Mr Palmer’s arguments
Mr Palmer submitted that, for the following reasons, a substantial award of additional damages should not be made:
First, neither Mr Palmer nor the UAP derived, or intended to derive, a profit or commercial benefit from the infringements or, for that matter any other benefit. Notably, the UAP did not win a single seat in the election.
Second, neither Mr Palmer nor the UAP sought to show an association with the artist or implicitly represent that the use of the copyright works was endorsed by the composer.
Third, the infringement was not flagrant or dishonest; Mr Palmer honestly believed that the use was lawful. Consequently, there is a reduced need for deterrence and a finding of infringement alongside an order for compensatory damages will provide sufficient deterrence.
Fourth, the behaviour of Mr Palmer and the UAP after the infringing conduct is “of limited relevance” unless there is “a sufficient connection between the infringement and the conduct complained of” and “it is of some relevance” that Mr Palmer’s post-infringement conduct was partly responsive to Mr Snider’s tweets which were “derisive and taunting”.
Finally, any deficiencies in Mr Palmer’s discovery, a matter upon which Universal relied, are irrelevant to this question, can be dealt with by appropriate costs orders, and such orders have already been made. Besides, Mr Palmer has exceeded his obligations by obtaining reports on advertising usage from various media companies and providing them to Universal’s solicitors, waiving legal professional privilege in the process.
Disposition
I reject Mr Palmer’s submission. This is a case which calls for a substantial award of additional damages.
First, Mr Palmer did act in flagrant disregard of Universal’s rights. It is true that in cross‑examination Mr Palmer claimed that in January 2019 he believed that there was no copyright in the lyrics because the same words had been used in Network and Tommy and in various places he claimed that the music was not copyright because the melody had been used in O Come All Ye Faithful. But I do not accept that Mr Palmer honestly believed at any relevant time that his use of the copyright works was lawful. To the contrary, the objective evidence demonstrates that Mr Palmer actually believed that Universal held the copyright in the works, that he needed a licence to use them, and that he decided to go ahead without one because he was not prepared to agree to Universal’s terms. Mr Palmer’s conduct was high-handed and contemptuous.
Second, Mr Palmer’s behaviour after receiving Universal’s cease and desist letter was contumelious. He conducted what Universal justifiably described as “a ferocious counterattack”, both directly and through the UAP, with the apparent object of deterring Universal from enforcing their rights. He alleged privately and publicly that there was no copyright in WNGTI and maintained the allegation in the first iteration of the defence, only to abandon it 12 months later. He issued an empty threat to sue Mr Snider for defamation.
Third, he gave false evidence, including concocting a story to exculpate himself, indicating that the need for both punishment and deterrence is high.
Fourth, while there is no evidence that Mr Palmer directly or indirectly derived a profit or commercial benefit from the infringements and the campaign did not reward the UAP with a seat in Parliament, “benefit” within para 115 (4)(b)(iii) is not necessarily confined to a pecuniary advantage or reward. In Polygram at 576 Lockhart J referred to a New Zealand case in which the benefit that would have accrued to the defendant by reason of the infringement was increased circulation of its newspaper where no corresponding tangible financial benefit was established. See also Aristocrat at [44] (Black CJ and Jacobson J).
There could be no doubt that Mr Palmer intended to, and did, derive a political benefit from the unauthorised use of the copyright works.
It will be recalled that Mr Richter deposed that the use of WNGTI, a popular and instantly recognisable rock anthem, gave the UAP videos powerful and far-reaching cut-through. An article by Shannon Molloy posted on news.com.au, exhibited to an affidavit of Mr Tonkin and admitted into evidence without objection, confirmed as much. The venerable political commentator, Michelle Grattan, was quoted as reporting that tracking research conducted by one of the major parties found that people were singing along with the jingle. In cross-examination, Mr McDonald testified that the UAP advertising campaign “definitely put United Australia Party on the map” and “the jingle” was an integral and invaluable feature of that campaign. He appeared to accept the cross-examiner’s description of the tune as “a catchy jingle”, volunteered that it was “obvious” that “catchy jingles in other – other advertisements do seem to work”, and accepted that there was no reason to think they would not work in political advertising. He conceded, albeit reluctantly, that the use of the jingle was helpful to the campaign.
In any event, Mr Palmer avoided the payment of a licence fee. That in itself is a benefit: Halal Certification Authority Pty Limited v Scadilone Pty Ltd [2014] FCA 614;107 IPR 23 at [106] (Perram J).
Further, as Universal also submitted, Mr Palmer must have assumed he would obtain a very significant benefit from the use of WNGTI because of the very substantial amount of money he expended on the broadcast and online communication of the UAP videos which incorporated it. While the exact amount he spent is unknown, we do know that the UAP spent $12 million on pre-paid advertising for the broadcast of the UAP videos as at 11 January 2019. Documents produced in response to a subpoena show that the broadcast of the UAP videos on Channel Nine alone cost approximately $1.9 million. And documents belatedly discovered by Mr Palmer show that the UAP videos were broadcast 18,649 times, amounting to more than 20% of the total number of broadcasts authorised by Mr Palmer. As Mr McDonald conceded in cross-examination, the advertising “definitely put [the UAP] on the map”; it raised the party’s profile and got people talking.
Sixth, the unauthorised use of WNGTI was deeply upsetting to Mr Snider. While the statements made by Mr Snider and Mr French on social media and the publicity that this proceeding has attracted may have set the record straight, it is reasonable to think that at least some of Mr Snider’s fans may not have seen the publicity.
Seventh, both before and during the proceeding, Mr Palmer taunted, mocked and derided Mr Snider in both mainstream and social media, perhaps for his own amusement but doubtless to attract publicity for himself and/or the UAP. During the course of the hearing he appeared on Sky News falsely accusing Mr Snider of having admitted in evidence to copying from O Come All Ye Faithful. This accusation had the potential to cause considerable harm to Mr Snider’s reputation. When questioned by the Court on the subject Mr Palmer claimed, in effect, to having been misinformed by “our media guy”. In the absence of corroboration, I take this claim with a grain of salt. In any event, he offered no apology either to the Court or to Mr Snider for the misrepresentation and, as Universal submitted, he gave the distinct impression that he was indifferent to the truth. Uploading the Cameo video to his social media accounts was obviously intended to ridicule, if not humiliate, Mr Snider.
Eighth, Mr Palmer’s approach to his discovery obligations is not irrelevant.
Universal cited only one authority for the proposition that Mr Palmer’s “failures in discovery and his resistance to further discovery” should be taken into account as falling within s 115(4)(b)(ib). That was Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd (No 2) [2008] FCA 746; 76 IPR 763 at [17]. But Mr Palmer relied upon it for the contrary proposition.
In Futuretronics at [17] Besanko J agreed with Goldberg J in Flags 2000 Pty Ltd v Smith [2003] FCA 1067; 59 IPR 191 at [45]–[46] that a distinction is to be drawn between conduct relevant to the substantive allegations made against the respondent and conduct relating to procedural matters and that conduct of the latter kind is “more appropriately dealt with by an appropriate order for costs”.
The distinction between conduct relevant to the substantive allegations and conduct relating to procedural matters can be difficult to draw. In Truong Giang Corporation v Quach [2015] FCA 1097; 114 IPR 498, a trade mark infringement case, Wigney J referred (at [138]) to Flags 2000 and Futuretronics but said that it was hard to see why some aspects of a respondent’s conduct in defence of infringement proceedings might not be relevant to the award of damages. Indeed, his Honour considered that:
Conduct of the proceeding which involved high-handedness, dishonesty, recalcitrance, or flagrant disregard of, or deficiencies in compliance with discovery orders or notices to produce might, at the very least, suggest a greater need for an award of additional damages that would deter future infringing conduct by the respondent”.
(Emphasis added.)
See, too, Geneva Laboratories Limited v Prestige Premium Deals Pty Ltd (No 5) [2017] FCA 63; 122 IPR 279 at [83] (Bromwich J).
I respectfully agree. There is no reason why a different approach would be required in a copyright infringement suit. Section 126(2) of the Trade Marks Act 1995 (Cth) is in substantially identical terms to s 115(4) of the Copyright Act.
In Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589; 29 IPR 236 at [58]–[59], for example, Kenny J took into account deficiencies in discovery in awarding additional damages in an infringement case involving copyright in a design. That case was cited with apparent approval by Gilmour J in Facton at [69].
In Facton, too, at [44] Lander and Gordon JJ considered that the respondents’ conduct after the proceeding was commenced and during the proceeding should be taken into account “much like it would for an award of aggravated damages in a defamation case” and referred to the fact that it was “only at the last minute that the respondents acknowledged their wrongful conduct” and denied infringement until then.
In the present case, discovery was ordered by Robertson J on 6 November 2019. That order required the discovery of documents recording or evidencing, amongst other things, the extent to which the UAP advertisements were broadcast and communicated and the costs incurred by Mr Palmer and the UAP of doing so. Mr Palmer’s response was that a third party held those documents. On 15 September 2020 Universal filed an interlocutory application seeking an order for further discovery, arguing that discovery in these respects was deficient and that they had been misled by the response and forced to pursue third parties by subpoena which confirmed those deficiencies. The application was supported by an affidavit of Mr Tonkin filed on 15 September 2020. Universal also filed detailed submissions in support.
Mr Palmer did not take issue with Universal’s submissions. On the return date for the interlocutory application he capitulated. He agreed to the orders sought including costs. He filed no affidavit explaining his failure to discover the documents.
Nor, apart from challenging their relevance to additional damages, did Mr Palmer take issue with the submissions Universal made at the end of the hearing on this question. Those submissions were based on Mr Tonkin’s evidence. In the absence of a contest, I accept the submissions.
In the week commencing 28 September 2020 Mr Palmer discovered and produced numerous documents. They included a large number of invoices, including invoices issued to the UAP, relating to the broadcast of advertisements incorporating the UAP recording and videos by a number of radio and television networks; email correspondence dating back to late May 2019 disclosing the extent of the UAP’s advertising on major television networks which incorporated one or more of the UAP videos; and some 1,588 payment receipts for the UAP’s advertising on Facebook.
There is no dispute that this material was within the scope of the discovery order made on 6 November 2019. Universal’s submission was that, in all the circumstances and especially given the absence of any proper explanation, the Court should infer that Mr Palmer’s failures in relation to discovery were deliberately calculated to frustrate Universal’s efforts to ascertain the full scope of his infringing activities. This submission went unanswered. I conclude that there was no answer and the inference Universal asked the Court to draw should be drawn.
Before completing this discussion I should also mention that Mr Palmer relied on Eight Mile Style in which no award was made for additional damages and the fact that the findings in this regard were affirmed by the Court of Appeal: National Party at [141]–[151]. On this subject the National Party case does not assist Mr Palmer.
Although there were some obvious similarities between the two cases, there were also some startling differences. For a start, the advertising and media consultants engaged by the National Party to produce the advertisements used in the election campaign sought and received assurance that the music in question did not infringe copyright and was free to be used. Moreover, two days after it received a cease and desist letter from the copyright owner/exclusive licensee (and a week after the first of the election advertisements aired), the National Party decided to replace advertisements to which the infringing music was synchronised. In the result, the offending advertisements were only broadcast for a total of 11 days. It seems that the claim for additional damages was based only on the fact that the National Party failed to seek legal advice to determine whether there was a risk of copyright infringement. In rejecting that claim, the primary judge, Cull J, noted (at [453] and [455]) that the National Party had sought the copyright work from a professional company which specialised in production music for sale, took advice from experienced professionals in the fields of advertising and music licensing in relation to the use of the relevant track, and obtained a synchronisation licence. Her Honour held (at [456]) that the actions of the National Party did not demonstrate flagrant or intentional infringement, contumelious or total disregard for the plaintiffs’ rights, or conduct that was so bad it ought to be punished.
In their cross-appeal the appellants argued that the National Party could be said to have gained a significant benefit by effectively obtaining the use in political advertising of a compulsory licence of the copyright in Eminem Esque against the will of the copyright owner and this should sound in an award of additional damages. They also argued that the National Party’s decision to use the track without contacting the copyright owners or their agents to seek a licence or check whether Eight Mile might object and without seeking legal advice evinced reckless indifference to the possibility of infringement warranting an award of additional damages. In endorsing the decision of Cull J to refuse additional damages, the Court of Appeal reviewed the evidence said to amount to reckless indifference and held that the proposition that the National Party turned a blind eye to the risk or recognised the risk but embarked on a reckless course of conduct was “not sustainable”. Further, while the Court of Appeal did “not rule out the possibility that additional damages might be awarded in respect of an intentional and particularly cynical use of a work in an inappropriate way”, it did not consider the National Party to have behaved in that way (National Party at [150]).
The conduct of Mr Palmer was strikingly different from that of the National Party.
Any award of additional damages must be sufficiently high to operate as a deterrent: Australasian Performing Rights Association Ltd v Monster Communications Pty Ltd [2006] FCA 1806; 71 IPR 212 at [202] (Rares J), citing XL Petroleum at 472 (Brennan J). The amount will obviously vary having regard to the means and circumstances of the individual infringer. As Pagone J observed in Pacific Enterprises (Aust) Pty Ltd v Bernen Pty Ltd [2014] FCA 1372; 321 ALR 715; 109 IPR 481 at [15], in relation to the cognate section of the Patents Act 1990 (Cth), an amount which may be an effective sanction for an infringer with limited means may be ineffective as a sanction or deterrent for a wealthy infringer or potential infringer.
The evidence discloses that Mr Palmer is a man of immense wealth. It is an agreed fact that his net worth is over $1 billion. In cross-examination he claimed not to care about having to pay out $180,000 to Universal, since he deals in billions of dollars.
Nevertheless, courts traditionally approach an award of damages with caution: Polygram at 577. And, although damages need not be proportionate to the amount of damages awarded under s 115(2), it is relevant to consider whether they are sufficient to serve the relevant purpose: see, for example, Aristocrat at 571–2. In this case I am certain that they are not.
Having regard to all relevant matters, I would award additional damages of $1,000,000.
Other relief
Universal sought the following additional relief:
1.A declaration that the UAP Recording and the UAP Videos each contain a reproduction of a substantial part of each of the Musical Work and the Literary Work.
2.A declaration that [Mr Palmer] has infringed [Songs of Universal’s] copyright in each of the Musical Work and the Literary Work by:
a. reproducing;
b. authorising the reproduction of;
c. communicating; and
d. authorising the communication of
a substantial part of those works in Australia without the licence of the Applicants.
3.An order that [Mr Palmer], whether by himself, his servants, agents or otherwise be permanently restrained from:
a. reproducing;
b. authorising the reproduction of;
c. communicating to the public; and
d. authorising the communication to the public of
the whole or a substantial part of the Musical Work or the Literary Work in Australia without the licence of the Applicants.
4.An order that [Mr Palmer] take all necessary steps to:
a.cause any and all reproductions of the UAP Recording, including the UAP Videos and any other video or audio recording that embodies the UAP Recording, to be removed from all online locations controlled by [Mr Palmer] or the United Australia Party (including on the websites YouTube and Facebook); and
b.cause the communication of the UAP Recording, including the UAP Videos and any other video or audio recording that embodies the UAP Recording, (including in advertisements for the United Australia Party) to cease.
5.An order that [Mr Palmer] deliver up to the Applicants all unauthorised reproductions of the Musical Work or the Literary Work, including the UAP Recording and UAP Videos, in his possession, power, custody or control.
It is beyond doubt that the Court has the power to make these orders.
In matters in which the Court has jurisdiction, s 23 of the Federal Court of Australia Act 1976 (Cth) gives the Court the power to make such orders as it thinks appropriate. The power to grant injunctive relief is expressly mentioned in s 115(2) of the Copyright Act and a delivery-up order is an equitable remedy regarded as ancillary to an injunction restraining the use or sale of infringing goods or works the purpose of which is to remove from the infringer “a source of temptation”: Meagher RP, Heydon JD and Leeming MJ, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (4th ed, 2002) at [27–050]; Mergenthaler Linotype Co v Intertype Ltd (1926) 43 RPC 381 at 382 (Russell J). See also Muddock v Blackwood (1898) 1 Ch 58 (Kerewich J) and compare Rosedale Associated Manufacturers Ltd v Airfix Products Ltd [1956] RPC 360 in which an order for destruction of infringing designs was made. In ACHOS Pty Ltd v Ucorp Pty Ltd (No 5) [2013] FCA 1006; 103 IPR 51, where orders were sought for the delivery up and destruction of the infringing works, Jessup J observed at [7] that orders of this kind “would be a conventional, and commonplace, remedy to be granted at the conclusion of a successful copyright action”. In Hole v Bradbury (1879) 12 Ch D 886 at 903 Fry J said there was “distinct authority” in favour of the view that the power to make an order for the delivery up for destruction of infringing works in a copyright case derived from the general jurisdiction of the Court and referred to the numerous patent and trade mark infringement suits in which orders of this kind were made. See also Lahore at [36,345] where Lindgren et al make the point that the remedy is not confined to cases in which actions are brought under s 116 of the Copyright Act for conversion or detinue.
Neither the power of the Court to make orders of this kind nor, with the exception of the claim for injunctive relief, the discretion to exercise the power in Universal’s favour, was identified as an issue in the parties’ agreed statement of facts and issues. Perhaps it was for this reason that in their written submissions Universal only addressed damages and merely noted their claim to the additional relief sought in the originating application. Similarly, although he had ample opportunity to do so, Mr Palmer did not address any of these matters, including the claim for injunctive relief, either in writing or orally. On the subject of relief, both the written submissions and the oral argument were confined to damages under s 115(2) and 115(4). In these circumstances, I take it that Mr Palmer accepted that the orders Universal sought were appropriate, or at least not inappropriate, in the event that Universal established infringement.
In the absence of any submissions on the question or evidence to suggest that the additional relief should not be granted, I propose to exercise my discretion in Universal’s favour. I should make it clear, however, that I am also satisfied that the orders Universal proposed are appropriate. In particular, I am satisfied that, if unrestrained by an injunction, there is a real risk that Mr Palmer would again infringe Songs’ copyright in the literary and musical works. No undertaking not to do so was offered to the Court. A claimant who establishes infringement of copyright is normally entitled to a permanent injunction to restrain future infringements (Copinger at [21-229]). There was no suggestion here of any disentitling conduct.
Conclusion
In summary, there is a sufficient degree of objective similarity between the copyright works and the impugned works such that the latter are properly to be regarded as reproductions or adaptations of the former and that the infringing works were taken or derived from the copyright works. Mr Palmer failed to make out his defence under s 41A of the Copyright Act. It follows that Mr Palmer infringed Songs’ copyright in both the literary work and the musical work.
Damages under s 115(2) of the Act can and should be assessed in accordance with the user principle. I consider the appropriate amount to be $500,000, representing the value of a notional or hypothetical licence fee for the use of the copyright works during the period of the infringements. Universal has also established a case for additional damages which, having regard to all the relevant circumstances, I have assessed at $1,000,000.
Finally, the other orders Universal sought should also be made. They include a permanent injunction in the terms Universal proposed.
I certify that the preceding five hundred and thirty three (533) numbered paragraphs is a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.
Associate:
Dated: 30 April 2021
ANNEXURE
We’re Not Gonna Take It
Daniel Dee Snider
We’re not gonna take it
No, we ain’t gonna take it
We're not gonna take it anymore
We've got the right to choose and
There ain’t no way we’ll lose it
This is our life; this is our song
We’ll fight the powers that be, just
Don't pick our destiny ‘cause
You don’t know us; you don't belong
We’re not gonna take it
No, we ain’t gonna take it
We're not gonna take it anymore
Oh, you’re so condescending
Your gall is never ending
We don't want nothin’, not a thing, from you
Your life is trite and jaded
Boring and confiscated
If that's your best, your best won't do
Whoa, oh oh
Whoa, oh oh
We’re right (yeah)
We’re free (yeah)
We’ll fight (yeah)
You’ll see (yeah)
Whoa, whoa
We’re not gonna take it
No, we ain’t gonna take it
We’re not gonna take it anymore
We’re not gonna take it
No, we ain’t gonna take it
We’re not gonna take it anymore
Whoa, oh oh
Whoa, oh oh
We’re right (yeah)
We’re free (yeah)
We’ll fight (yeah)
You’ll see (yeah)
We’re not gonna take it
No, we ain’t gonna take it
We’re not gonna take it anymore
We’re not gonna take it (no)
No, we ain’t gonna take it
We’re not gonna take it anymore (just you try and make us)
We’re not gonna take it (come on)
No, we ain’t gonna take it (you’re all worthless and weak)
We’re not gonna take it anymore (now drop and give me twenty)
We’re not gonna take it (a pledge pin)
No, we ain’t gonna take it (on your uniform)
We’re not gonna take it anymore
- AGLC
- Universal Music Publishing Pty Ltd v Palmer (No 2) [2021] FCA 434
- Case
- [2021] FCA 434
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the defendant's works were substantial reproductions or adaptations of the plaintiff's copyrighted works, whether the defence of fair dealing under s 41A of the Copyright Act was applicable, and what relief the plaintiff was entitled to, including damages, additional damages, and injunctive relief. The court also had to assess the appropriate amount of damages under the user principle.
In its reasoning, the court found that there was a sufficient degree of objective similarity between the plaintiff's copyrighted works and the defendant's impugned works, such that the latter were reproductions of the former. The court held that the defendant had failed to establish the defence of fair dealing. The court further found that the plaintiff had established its case for damages under s 115(2) of the Act, which should be assessed according to the user principle. The court granted the plaintiff an amount of $500,000 for the value of a notional or hypothetical licence fee for the use of the copyrighted works during the period of the infringements, and an additional $1,000,000 in additional damages. The court also granted the plaintiff a permanent injunction in the terms proposed by the plaintiff.
The court's final orders included the grant of damages in the amount of $1,500,000, and a permanent injunction restraining the defendant from infringing the plaintiff's copyright in the future. The court also ordered the defendant to deliver up all copies of the impugned works and any materials used in the creation of those works for destruction.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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