Defendant files appeal in copyright infringement case involving ‘80s hit song by Twisted Sister
02 July 2021
Australian real estate and mining mogul Clive Palmer filed an appeal last May on the copyright infringement case involving the 1984 hit song “We’re Not Gonna Take It” (WNGTI) by Twisted Sister.
In April, the Federal Court of Australia ruled against Palmer, also the founder of the United Australia Party (UAP), in Universal Music Publishing Pty Ltd vs. Palmer (No 2)  FCA 434.
Justice Anna Katzmann ordered Palmer to pay AU$500,00 in damages and an additional AU$1 million under Section 115(4) of the Copyright Act to Universal Music Publishing Pty Ltd and Songs of Universal (Universal).
Universal owns the copyright to “We’re Not Gonna Take It.” It is also the official licensee in Australia.
The case stemmed from Palmer’s planned use of the Twisted Sister song in 2018. The UAP founder was in negotiations with Universal regarding this and the necessary license fee. The talks, conducted via email in October 2018, never progressed and the license was never granted to Palmer.
However, a series of UAP campaign videos cropped up on Australian TV, radio and online with the 2019 federal election coming up. The campaign videos used the song “Aussies Not Gonna Cop It” (ANGCI) which was written by Palmer. A portion of the song’s lyrics goes, "Australia ain’t gonna cop it, no Australia’s not gonna cop it, Aussies not gonna cop it anymore.” Palmer also ordered the song’s recording and its use in the campaign videos.
Universal sent a cease and desist letter to Palmer who reasoned that WNGTI’s melody was copied from “O Come All Ye Faithful.” He also claimed it was covered by the defense of satirical fair dealing under Section 41A of the Copyright Act.
“When Mr. Palmer relied on the defence of fair dealing for the purpose of parody or satire in Court last year, there had only been one prior 2017 decision, Pokémon Company International, Inc. vs Redbubble Ltd that had considered the somewhat unclear scope and operation of that defence. There, the Court only considered whether the defence was available for allegedly infringing images,” said Onur Saygin, a lawyer at Shelston IP in Sydney.
“Before this case, the scope and application of the defence, which was added to the Copyright Act in 2006, had not been considered by an Australian Court in the context of a musical and literary work embodied in a song and its lyrics respectively. With the lack of prior guidance from the Courts, Mr. Palmer was exposed to a greater risk of failure and consequently being ordered to pay Universal and Song’s legal costs with respect to their rebuttal of the defence.”
“On the question of whether the infringing activity the Court identified in this case could be considered ‘fair dealing…for the purpose of parody or satire,’ on one hand the conduct and findings documented in the judgment, particularly the extensive publication of key aspects of the copyright works by Mr. Palmer without a copyright licence, do appear to upset the balance struck between rights of copyright owners and a need to protect creators of parody and satire that the defence was intended to afford when first introduced to the Copyright Act. On the other hand, uncertainty remains around the scope and operation of the defence, due to the statutory wording. Without decisions from Appeal Courts, although reduced by this decision, uncertainty will still remain. Even if further decisions continue to unpack the operation of this defence, there will be cases where it is difficult to predict whether a Court will agree the purpose of material is or is not satirical.” Saygin explained.
Palmer also argued in Court that he wrote ANGCI with inspiration from the 1976 award-winning movie “Network.” The movie included a scene showing people yelling “I’m mad as hell and I’m not gonna take it anymore” from their windows.
However, Justice Katzmann did find his action to be one of copyright infringement.
“An interesting aspect of this case was the Court’s agreement with Universal and Song’s argument that factors required to be taken into account by a Court when considering a separate fair dealing defence, section 40(2) of the Copyright Act, which is available in limited circumstances in connection with research or study, were also relevant for the section 41A parody and satire defence. A plain reading of the statutory words setting out the parody and satire defence suggests that, absent statutory reform, a Court is not required or restricted to consider section 40(2),” Saygin said. “It is possible that undue focus on those factors could lead a Court into error, which could then form the basis for an appeal.”
What could be the significance of the case to the Australian legal system and IP regime?
“Mr. Palmer filed to Appeal this decision in May this year. It will be interesting to see whether the case is ultimately heard by the Full Federal Court and if so, which legal issues are considered. We may yet be given even greater clarity on the scope and operation of the defence of fair dealing for the purpose of parody or satire. Without that, legislative amendment may be required to clarify how the provision operates in practice. Such reform would likewise provide parties to copyright litigation in Australia with a clearer understanding of how the defence operates and potentially lead to quicker resolution of relevant copyright disputes,” said Saygin.
Espie Angelica A. de Leon