Clive Palmers twisted tale fair dealing and additional damages in copyright infringement
22 June 2021
22 June 2021
In April 2021 the Federal Court found that Clive Palmer infringed the copyright in the music and lyrics of the Twisted Sister song We're Not Gonna Take It (WNGTI). The Court determined that Mr Palmer reproduced, communicated, and authorised the reproduction and communication of WNGTI by using the sound-alike version, Aussies Not Gonna Cop It, in political advertising during the 2019 federal election. The Court ordered Mr Palmer to pay Universal Music $500,000 in damages for a hypothetical licence to WNGTI, plus $1m in additional damages.
In this article we look at:
Mr Palmer primarily argued that his song, Aussies Not Gonna Cop It, did not incorporate a substantial part of WNGTI. This argument was unsuccessful so the Court turned to Mr Palmer's alternate claim that he did not infringe Universal's copyright because the reproduction of WNGTI constituted fair dealing for the purposes of parody or satire under s 41A of the Copyright Act. In order for the defence to succeed, Mr Palmer needed to establish that his dealing with the works had been fair, and for the purpose of parody/satire. The factual question was not whether the work was parody or satire, but rather whether parody or satire was the purpose for which the work was created.
Mr Palmer argued that his dealings were fair, and he had used the works satirically to deal with issues of political concern. The Court disagreed. Referring to the use as "opportunistic", Justice Katzmann found that Mr Palmer intentionally infringed Universal's copyright, taking the most prominent feature of the song. The Judge also found that the sole purpose to which Mr Palmer's put the works was for a political campaign, and not for purpose of parody or satire.
"This is a case which calls for a substantial award of damages." – Justice Katzmann
Justice Katzmann stated that the following factors were relevant to the award of additional damages:
Previous cases have found that only the facts concerning the infringement were relevant to damages, with conduct relating to the proceedings more relevant to an award of costs. But here Justice Katzmann stated that Mr Palmer's non-compliance with discovery orders suggested there was a need for damages to deter this type of conduct in the future.
The Judge noted that Mr Palmer was "… a man of immense wealth", and that he had stated in cross examination that he didn't care about paying Universal $180,000 because he deals in billions.
The Court's award of $1m in additional damages is one of the largest in Australian copyright litigation history.
Authors: Carrick Brough, Lawyer and Lisa Ritson, Partner
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