If You're Going To Defend A Satirical Song From A Copyright Lawsuit, Don't Try A Bunch Of Stupid Alternative Arguments First

from the bad-idea dept

Australian mining billionaire and former politician Clive Palmer has been hit with a $1.5-million judgement over unauthorized use of the song “We’re Not Gonna Take It” by Twisted Sister. The suit was brought by Universal Music after, as part of a 2019 political campaign, Palmer made videos using a modified version of the song with the lyrics “Australia ain?t gonna cop it, no Australia?s not gonna cop it, Aussies not gonna cop it any more”. Setting aside the rather questionable scansion, it’s a pretty obvious modification of the famous song, giving it at least a chance of qualifying for the fair dealing exception for parody and satire that exists under Australian copyright law. But in a ruling today the court has rejected that argument entirely:

Justice Katzmann described the argument that the UAP works were for the purpose of satire as “ambitious, to say the least”.

At first blush, this seems insane when the song is so obviously an attempt at some kind of satire or parody. But the background of the case shows why the court reached this decision — because Palmer originally tried out a bunch of different (and pretty crazy) arguments. First, he denied that his lyrics were even based on the song they are so obviously based on:

Mr Palmer was accused of lying during his evidence when he appeared before the court in October.

He claimed his lyrics, which included “Australia ain’t gonna cop it”, had nothing to do with the metal song but were inspired by a similar line in the 1976 film Network.

Justice Katzmann said that suggestion “appeared to take everyone else in the virtual courtroom by surprise”.

Mr Palmer said he couldn’t provide the notepad he originally scrawled his ideas on because it had been thrown out by his staff.

The judge was understandably extremely unimpressed by this, calling it “ludicrous” and “fanciful”, especially when it was known that Palmer had sought a license originally:

But the trial also heard a representative for Palmer had originally sought copyright approval from Universal before baulking at the $150,000 fee.

In a scathing judgement, 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?.

Palmer’s lawyers also threw in an attempt to invalidate the copyright on the Twisted Sister song for lack of originality, on the basis that it is similar to the Christmas carol O Come, All Ye Faithful. Only after all these arguments failed did Palmer invoke a fair dealing defense for parody and satire, which certainly explains the judge’s characterization of it as “ambitious”.

So while Palmer has nobody to blame but himself and his lawyers for this outcome, it’s unfortunate for the rest of us that all their bumbling resulted in the fair dealing argument being so wholly and rapidly rejected. Twisted Sister’s Dee Snyder has been loudly celebrating the win, after having appeared at one of the hearings last year to explain how Palmer’s version “misrepresented the message” of the song and was “not good for my heavy metal image”. But copyright isn’t about protecting a musician’s image, and parody and satire exceptions exist precisely to allow people to change the message of a work, which is a strange thing to describe as “misrepresentation” — and they don’t just apply to people who change the message to something that the original artist (or anyone else) likes or approves of, as much as I can understand the frustration of having someone like Palmer use your work for his own political advancement.

It’s impossible to say for certain whether Palmer’s song would have qualified under Australia’s fair dealing exceptions — as is so often the the case, they are narrower than they should be and leave a lot up to the judge’s artistic discretion — but it would have been a lot better to get a ruling with an untainted exploration of this argument which is so obviously the most relevant one, and the one that should have been the focus of the case from the start.

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Kane Williamson says:

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This comment has been deemed insightful by the community.
spamvictim (profile) says:

Moral rights in copyright

When you say "copyright isn’t about protecting a musician’s image," that is true in the U.S. but not in other countries. In 2000 Australia passed a moral rights amendment to their copyright act which includes Right of integrity of authorship:

derogatory treatment, in relation to a literary, dramatic or musical work, means:

(a) the doing, in relation to the work, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the work that is prejudicial to the author’s honour or reputation; or

(b) the doing of anything else in relation to the work that is prejudicial to the author’s honour or reputation.

Given the facts in this case I’d say her moral rights argument under Australian law would be quite strong. Remedies include injunctions and damages.

Zane (profile) says:

Re: Moral rights in copyright

You’re exactly right, although I’d argue that moral rights are there as a default in US copyright law. The US might not explicitly mention "moral rights". But it’s a given, as the artist has control of their work to ensure they can profit from it, create more, and just as important not have someone use their work in a way which negatively affects their career and ability to create and profit from future work. That’s why many are careful about whether they sell the rights for political campaigns to use their works in adverts.

Anonymous Coward says:

Re: Re:

If courts worked in a way such that judges could say to a party, "You make a poor argument, but under the law, such and such things apply to the case, so party x wins this one," that might make sense. But many legal systems generally do not operate this way. And when you make a lot of bad arguments and lie, and as a last ditch effort you try to make some actually valid argument, it looks pretty much that you are doing so in bad faith, or by accident if we are being charitable. This is actually a pretty good reason to rule against someone in that case. Among other things, you are wasting the court’s time and racking up legal bills for the opposite party.

Other people operating in bad faith intent on using this as precedent so as to utterly negate fair dealing should also be treated similarly.

Scary Devil Monastery (profile) says:

Re: Re:

"What a garbage ruling."

I’m no fan of copyright and even less of Australia’s increasingly disturbed skew on all matters digital…but even I can’t defend this one; Had the guy shown up with the proper presentation – that this was satire and/or parody – the law might have given him a win.

Instead he peddled a number of bad faith arguments and outright whoppers. When you’ve established bad faith or borderline perjury in a courtroom it usually doesn’t end well for you.

The judge simply dismissing his claims rather than hold him in outright contempt of court is actually lucky for Palmer.

That One Guy (profile) says:

For shame, they forgot to try to blame the kitchen sink too

You’d think someone that rich would have the ability to hire competent lawyers but I guess he was scraping the bottom of the barrel for representation, though perhaps the horrible excuses were his idea and he just kept going through lawyers until he found one that was able to make such terrible arguments with a straight face.

Anonymous Coward says:

"Palmer had sought a license originally" and balked at the price. Then he tried to use it anyway for his political campaign – not as a parody like Weird Al does. When he got sued for it he tried to throw everything at the wall and hoped something would stick.

Also this was in Australia – not the US. Different rules apply.

recherche says:

Palmer is held in contempt by some Australians...

He hails from Queensland, which is relatively conservative relative to
the rest of Australia.

For a magnificent demonstration of how he tried to sue a (near-)peniless
satirist "FriendlyJordies, see e.g. the YouTube response from Jordan S.
referenced in this article:

https://www.gizmodo.com.au/2019/09/billionaire-threatens-to-sue-youtuber-for-calling-him-fatty-mcfuckhead-and-photoshopping-him-as-trumps-baby/

He ran a candidate in EVERY seat in the country… and came out with
ZERO representation… after spending $significant amounts on his
campaign (as highlighted in the YouTube response).

— recherche

Zane (profile) says:

Political campaig advert - don't complicate things

He lost because it was used in an advert for political campaigning, there isn’t really much more to it. Even in the US, political adverts need copyright permission. Satire and parody as a defence could work for someone not closely connected to a political campiagn. It’s different situation whenyou come to political advertising. Satire and parody are not for the billioinaires making adverts who are trying to sway voters to vote for the billionaires own interests.

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