Clive Palmers twisted tale fair dealing and additional damages in copyright infringement

What you need to know

• The defence of fair dealing for the purpose of parody and satire is construed narrowly under Australian law.  For the defence to apply, the use of the work must be fair, and for the intended purpose of parody and satire.
• Courts will award a significant additional damages where an infringing party is found to have acted in a high-handed and contemptuous manner.

What you need to do

• Always ensure you have a licence in place before using music in promotional and advertising material.

Copyright Infringement

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's failed attempt to argue fair dealing for the purpose of parody and satire under s 41A of the Copyright Act 1968; and
• the factors that the Court considered relevant in its assessment of additional damages.

(Not) Fair Dealing

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.

(Lots of) Additional Damages

"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:

• Mr Palmer acted in flagrant disregard of Universal's rights.  The evidence demonstrated that Mr Palmer knew Universal held copyright in the works, and that he would need a licence, but he decided to use the works without one.
• After receiving a letter of demand from Universal Mr Palmer attacked Universal to deter it from enforcing its copyright, and threatened to sue the author, Dee Snider for defamation.
• Mr Palmer gave false evidence, and failed to comply with Court ordered discovery obligations.  Justice Katzmann inferred his intent was to frustrate efforts to discover the full scope of his infringement.
• Mr Palmer derived political benefit from the unauthorised use, and financial benefit by avoiding the licence fee.
• The unauthorised use was upsetting to Dee Snider, and before and during the proceeding, Mr Palmer taunted, mocked and derided Mr Snider in mainstream and social media.

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