Universal Music Publishing Pty Ltd v Palmer (No 2) [2021] FCA 434

Judgment of: Federal Court of Australia

Judge: KATZMANN J.

Date of judgment: 30 April 2021

FACTS

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. 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.

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.

ISSUE

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.

JUDGEMENT

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). 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.
ANALYSIS

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 uncontroversial 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.1 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.”2 Katzmann rejected Palmer’s claims, finding that “it was ludicrous of
the mining billionaire to suggest his song was created independently of the Twisted Sister hit.
She found him to be a most unimpressive witness and that his evidence was at times
incredible. She said Palmer gave false evidence during the trial including concocting a story
to exculpate himself, indicating that the need for both punishment and deterrence is high. She
stated that she does not accept that Mr Palmer honestly believed at any relevant time that his
use of the copyright works was lawful, she wrote in the judgment. Katzmann further said
there was no doubt Palmer intended to, and did, derive a political benefit from the
unauthorised use of the copyright works, and found the mining magnate had shown flagrant
disregard for Universal’s ownership of the song.” Clive Palmer's Covid vaccine ad in News
Corp paper factually wrong, regulator says Read more She labelled his conduct in pushing
ahead with the music despite not obtaining copyright approval as high-handed and
contemptuous, and said his behaviour after receiving a cease and desist letter from Universal
was “contumelious” that is, scornful or insolent.

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. 3 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

1
IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 at [28].
2
Sawkins v Hyperion Records Ltd [2005] EWCA Civ 565; [2005] 3 All ER 636.
3
Copyright (International Protection) Regulations 1969 (Cth), reg 4(1).
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.