Copyright Infringement? The Court is “Not Gonna Take It”

A clear cut case of copyright infringement involving Twisted Sister’s hit song “We’re Not Gonna Take It” (WNGTI) has demonstrated the Court’s willingness to award significant financial penalties where intellectual property rights have been “flagrantly” infringed.

In Universal Music Publishing Pty Ltd v Palmer (No 2) [2021] FCA 434, Justice Katzmann of the Federal Court ordered Australian businessman and United Australia Party (UAP) founder Clive Palmer to pay AU$1.5 million in damages after finding that he had infringed copyright in WNGTI. Katzmann J notably awarded AU$1 million in additional damages, two-thirds of the total award, under section 115(4) of the Copyright Act 1968 (Cth) (Act).

The action was brought against Mr Palmer by joint applicants Universal Music Publishing Pty Ltd and Songs of Universal (collectively, Universal), which are the exclusive Australian licensee and copyright assignee respectively.

Background
In the lead up to the 2019 Australian federal election, Mr Palmer authorised the creation of a recording of “Aussies Not Gonna Cop It” (ANGCI) and the synchronisation of this recording with at least 12 video advertisements for the UAP.

The authorisation came after several email exchanges between Universal and Mr Palmer’s staff in October 2018 regarding a licence for use of WNGTI. Negotiations stalled as Mr Palmer’s staff baulked at the licence fee being asked, yet creation of the ANGCI recordings progressed. The campaign videos synced with ANGCI were then used across television, radio and online streaming.

Incredulous fans brought the campaign to WNGTI’s writer Dee Snider’s attention, who made it publicly clear that he had not endorsed the UAP’s use of the song. Universal confirmed a licence had not been granted, and it sent a cease and desist letter to Mr Palmer. Mr Palmer responded by publicly and vehemently denying any unauthorised use and claiming Twisted Sister had stolen WNGTI’s melody from the Christmas Carol “O Come All Ye Faithful”. Soon after, Universal commenced proceedings alleging Mr Palmer’s authorisations of the reproductions infringed their copyright in WNGTI.

Copyright infringement
Mr Palmer advanced several arguments against a finding of copyright infringement, including that:

• copyright did not subsist in WNGTI, as the song was itself taken from “O Come All Ye Faithful“;
• he wrote the lyrics to ANGCI in a moment of “deep contemplation” as inspired by a misremembered line from the film Network, “we’re not gonna take it anymore”;
• even if copyright subsisted and the UAP advertisements reproduced a substantial part, the use was covered by the defence of satirical fair dealing within section 41A of the Act.

Katzmann J rejected Mr Palmer’s defences and found that infringement of Universal’s copyright in WNGTI was established.

Relief
Damages were awarded in the sum of AU$1.5 million on the basis of the “user principle” under section 115(2) of the Act and additional damages under section 115(4) of the Act.

Mr Palmer argued that Universal was only entitled to nominal damages as the evidence suggested Universal would not have granted a licence for the use. Katzmann J rejected this upon a thorough review of the relevant authorities, including consideration of the position in New Zealand following the recent clash between the New Zealand National Party and well-known rapper Eminem¹ (National Party case) over substantially the same issue.

Katzmann J assessed the value of a notional licence fee and Universal’s section 115(2) damages at AU$500,000, taking into account that:

• WNGTI was a valuable commodity for Universal and “one of, if not the, premium song in the Twisted Sister catalogue” with “significant licencing history in other territories”;
• use of WNGTI brought “considerable” value to Mr Palmer, as the “popular and instantly recognisable rock anthem gave the UAP videos powerful and far-reaching cut-through”;
• WNGTI had not been previously used in advertising in Australia;
• the infringing works were used in political advertising, being deployed and featured prominently in multiple advertisements, shown frequently throughout Australia on a variety of platforms;
• the campaign lasted for approximately 6 months; and
• there was a continued risk that people will associate WNGTI with the UAP and Mr Palmer.

Mr Palmer used the National Party case to argue against the award of additional damages. However, Katzmann J found Mr Palmer’s conduct to be “strikingly different” from that of New Zealand’s National Party and considered the need for punishment and deterrence to be high. Additional damages were awarded in the sum of AU$1 million, taking into account Mr Palmer’s:

• “flagrant” infringement, with Katzmann J finding Mr Palmer believed Universal held the copyright, that he needed a licence to use them, and that he decided to go ahead without one regardless;
• “contumelious” or insolent conduct, including alleging a lack of copyright in WNGTI after receiving Universal’s cease and desist letter and his ridiculing actions towards Mr Snider both before and during the proceedings;
• “concocted” evidence;
• political benefits derived from the unauthorised use of the copyright works, despite his arguments to the contrary in light of the UAP’s lack of election success;
• lax approach to discovery obligations; and
• personal “immense wealth”.

The Court also granted a permanent injunction against Mr Palmer’s use of WNGTI.

Key Takeaways
The “user principle” or hypothetical licence fee upon which damages may be awarded is alive and well in Australia, even where evidence suggests a licence would not have been granted in the circumstances.

A party’s behaviour prior to and during proceedings will be considered in an award of additional damages, with the need for punishment and deterrence taken into account. The hefty award of additional damages in this case makes it clear that when it comes to “flagrant” violations of copyright, “contumelious” or insolent behaviour and the “concocting” of false evidence, the Court is simply not going to take it.

By Jonathan Feder and Phoebe Naylor

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1. The New Zealand National Party v Eight Mile Style, LLC [2018] NZCA 596; 144 IPR 486