Copyright or copywrong?.

Businessman and former politician Clive Palmer was defeated in a copyright infringement case following unauthorised use of a popular Twisted Sister song in a political campaign.

Palmer, founder and chairman of the United Australia Party (UAP), authorised the recording and broadcast of the song ‘Aussies Not Gonna Cop It’. The song contained more than a subtle similarity with Twisted Sister’s hit song ‘We’re Not Gonna Take It’ and Palmer’s version was used prominently throughout the UAP’s 2019 federal election campaign in advertisements on numerous platforms. These included free to air television, the UAP website, Facebook and YouTube.

Universal is ‘Not Gonna Take It’
Palmer’s agents approached Universal, the exclusive licensee in Australia of the song, to negotiate a licence to use a re-recording of ‘We’re Not Gonna Take It’ for political advertisements in UAP’s election campaign. When Universal declined Palmer’s lowball licence fee offer, Palmer subsequently arranged for the recording of his own version of the song, called ‘Aussies Not Gonna Cop It’.

Clearly not happy with Palmer, Universal filed proceedings in the Federal Court for copyright infringement. Universal claimed that ‘Aussies Not Gonna Cop It’ was an unauthorised re-recording of Twisted Sister’s song.

The twisted world of copyright
Palmer argued he had not infringed copyright as:

1. the chorus was not copied;
2. any copied work was not original work as the ‘We’re Not Gonna Take It’ melody was the same as the opening bars of the Christmas carol ‘O Come All Ye Faithful’;
3. the recording was a fair dealing for the purpose of parody and satire;
4. the inspiration was from a line in the film, ‘Network’, which he misremembered as ‘we’re not gonna take it no more’.

Untwisting the connection
The court was satisfied that there was a requisite causal connection in relation to the copyright of the musical and literary work between the 2 songs.

It further found that the recording of ‘Aussies Not Gonna Cop It’, along with the synchronisation of the song in video advertisements, contained a reproduction of a substantial part of each of the musical work and lyrics comprised in the song ‘We’re Not Gonna Take It’.

Palmer was ordered to pay a whopping $1.5 million in damages.

Key take-away message
The key take-away message from this case is that advertisers should always obtain a licence from the copyright owner before using musical works in advertising campaigns. If not, they may face significant penalties for copyright infringement.

If you have an intellectual property matter you need to assistance with, please contact Bespoke to discuss.