Winnie Lok, Solicitor |
A song with a clear message of defiance, “We’re Not Gonna Take It” by Twisted Sister is a very popular song, licensed for all types of events and uses, especially political rallies and campaigns. Written and composed by the band’s lead singer, Dee Snider, the song has seen its fair share of unauthorised use by politicians. Mr Snider has had to ask various politicians to stop using the song. Most politicians, including ex-US president Donald Trump, have obliged.
This was not the case for Australian billionaire, ex-politician and like Mr Trump, repeated recent lawsuit loser Clive Palmer. Mr Palmer denied any copyright infringement in his rewritten version of “We’re Not Gonna Take It” called “Aussies Not Gonna Cop It”. The Federal Court of Australia begged to differ in a scathing judgment handed down last week.
So how much is too much to copy when it comes to using copyright works? If enough of the material is changed, can you avoid copyright and license risks?
In 2019, Mr Palmer used a rewritten version of Twisted Sister’s “We’re Not Gonna Take It” in advertising for the United Australian Party (“UAP”) election campaign which included the lyrics “Australia ain’t gonna cop it” and “Aussies not gonna cop it anymore”. Mr Palmer claims that this was written in September 2018 and inspired by a line from the 1976 film, Network, where Australian Peter Finch, in his leading role, had the brilliant monologue that included the iconic “I’m as mad as hell and I’m not going to take this anymore” line. However, it was revealed that Mr Palmer had attempted to seek a licence from Universal Music Publishing to use a re-recorded version of “We’re Not Gonna Take It” in the UAP advertising. When the parties could not agree on a licensing fee and negotiations broke down, Mr Palmer proceeded with his rewritten version of “We’re Not Gonna Take it” for the UAP advertising and as a result, Universal Music Publishing and Mr Snider commenced legal proceedings alleging copyright infringement.
Mr Palmer denied any copyright infringement and claimed that his lyrics in “Aussies Not Gonna Cop It” are original. He also argued that given the similarities between the musical work in “We’re Not Gonna Take It” and “O Come, All Ye Faithful”, in addition to “we’re not gonna take it” being a common phrase, his position was that the musical and literary works of “We’re Not Gonna Take It” are not original and therefore, there are no grounds for copyright infringement.
The Federal Court rejected these arguments. The Federal Court also did not consider Mr Palmer had any defence of parody or satire, or fair dealing.
The Federal Court held that there had been a substantial reproduction of both the literary and musical copyright of “We’re Not Gonna Take It” in Mr Palmer’s “Aussies Not Gonna Cop It”, so a copyright infringement had taken place. Whether a piece of music is a substantial reproduction involves looking at the quality and quantity that is taken, meaning that if a small part of a copyright work is taken but it is a particularly important part, that will be sufficient to amount to a substantial reproduction. There was no doubt that the chorus of “We’re Not Gonna Take It” is the most prominent and an essential feature of both the musical and literary works both quantitatively and qualitatively. The Federal Court considered Mr Palmer’s rewritten version as opportunistic and a deliberate variation of “We’re Not Gonna Take It”. Mr Palmer has now been ordered to pay $1.5m in damages and remove all advertisements, communications or recordings featuring “Aussies Not Gonna Cop It” from all locations.
Copyright and music licensing
Under the Act, copyright subsists in any original works (which includes literary works, dramatic works, musical works and artistic works) and subject matter other than works (which includes sound recordings, cinematograph films, television and sound broadcasts, and published editions of works). The copyright owner may be the “author” or creator, or it may be a third party if copyright had been assigned to them. Copyright is infringed when anyone who is not the owner or licensee reproduces the work or subject matter in a material form.
There are actually 3 different sets of copyright elements in a song: 1) the literary work (i.e. the lyrics); 2) the musical work (i.e. the composition); and 3) the sound recording (the actual recorded song, as reduced to its recorded form). As a result, there are often numerous rights holders in a song, and these may be owned by separate owners. Given that a re-recorded version of “We’re Not Gonna Take It” was the subject of this dispute, only the literary and musical works (not sound recording) were relevant here.
Copyright can be assigned (in writing) by the copyright owner to a third party. Even if they are no longer the copyright owner of a work, authors still maintain moral rights in the work which gives them the right to be credited and attributed for their work, and the right to have their work protected from derogatory treatment. In this case, Universal Music Publishing is the exclusive licensee in the literary and musical works of the copyright in Australia.
If Mr Palmer wanted to use an existing recorded version of “We’re Not Gonna Take It” for his UAP campaign, he would have also needed to seek (and importantly, obtain) the appropriate licence from the rightsholder/s of the sound recording. Depending on the recording (e.g. master recording or live recording), the rightsholder/s generally is one or more of the following: the record company, the artist, a licensee and/or a distributor. For this reason, many advertisers generally use a re-recorded version of a song for their campaigns as this means that it is one less licence they need to obtain and pay for.
What can we learn from this?
In order to avoid copyright infringement, it is fundamental to seek the relevant licence and consent to reproduce any original work or subject matter. In the absence of this, not only do you risk your entire campaign being pulled but also litigation as seen in Mr Palmer’s case. If you do ask for a licence and it gets rejected, this can really act unfavourably for you if you then go on to create your own “sound-alike” version, as it makes it much harder to prove it was your own original song. If you are going to create your own music for a campaign, you need to do a lot better than Mr Palmer’s team did in creating an original, non-infringing piece of work that does not substantially reproduce an existing piece of work.
It is indisputable that music plays a large part in conveying messages and meaning in advertising, so it is important to get music licensing right. You must be aware of all the relevant rightsholders to ensure that you are obtaining all the required consent and licences. In this case, Mr Palmer had correctly identified the right people to contact to obtain permission from but was unwilling to pay the licence fee and seems to have decided that it would be clever to record and use a song to emulate “We’re Not Gonna Take It” without paying for the rights. Unfortunately for him, this was not a good move, and he is now paying a far greater price than the licence fee.
If you would like further information on copyright infringement and music licensing, please contact one of our experts below.