© AAPClive Palmer during a media conference in Brisbane
Businessman Clive Palmer has been ordered to pay $1.5 million to Universal Music after losing a copyright fight over his use of the Twisted Sister anthem We're Not Gonna Take It in a string of political advertisements before the 2019 federal election.
In a judgment on Friday, Federal Court Justice Anna Katzmann said the former federal MP and United Australia Party founder had infringed Universal Music's copyright in the 1984 hit and rejected his claims he had not used the song but had penned his own original lyrics and used the melody of an 18th century hymn.
It was "ludicrous" and "fanciful" to suggest Mr Palmer's recording was created independently of the Twisted Sister anthem, Justice Katzmann said, and his behaviour in using the song without a licence was "high-handed and contemptous".
"He gave false evidence, including concocting a story to exculpate himself, indicating that the need for both punishment and deterrence is high," she said.
Justice Katzmann ordered him to pay $500,000 in damages, $1 million in additional damages in light of the flagrancy of the infringement, and legal costs. Interest on damages will be calculated at a later date.
In copyright law, the music and lyrics of a song are separate works. Mr Palmer claimed he had not infringed copyright in Twisted Sister's lyrics because he penned his own words while "deep in contemplation" in the early hours of one morning in September 2018.
He said he was not inspired by Twisted Sister at all but by actor Peter Finch's famous utterance in the 1976 film Network: "[I'm mad as hell, and] I'm not going to take this anymore."
He said he developed the concept "Australians are not prepared to accept it" from this nugget of inspiration, and it evolved into the chorus: "Australia ain't gonna cop it, no Australia's not gonna cop it, Aussies not gonna cop it anymore."
This was despite the fact that a video producer approached Universal on Mr Palmer's behalf in 2018 to licence the Twisted Sister hit, but no deal was struck. Mr Palmer told the court this was "a low-down person getting quotes" and "he wasn't negotiating on my behalf", but on behalf of the party.
In an October 2018 email, the producer told Mr Palmer, who used a Yahoo email address under the pseudonym "Terry Smith", that "Universal are still being sticklers for their rules" about approving any use of the hit.
Mr Palmer said he also did not infringe copyright in the hit's melody because it was a "rip off" of the 18th century Christmas carol O Come, All Ye Faithful.
Separately, Mr Palmer had argued any use of the song falls under a "fair dealing" defence because his work is "parody or satire".
Mr Palmer told the court he was used to dealing with "billions of dollars" and didn't care about the money but "the principle".
Twisted Sister frontman Dee Snider, who wrote We're Not Gonna Take It, gave evidence during the case that he realised years later he had transformed the first six notes of O Come, All Ye Faithful into the chorus of his hit, but the "key word" was "transformed". It was a matter of unconscious "inspiration, not duplication".
Justice Katzmann said she did not accept that Mr Palmer "honestly believed at any relevant time that his use of the copyright works was lawful".
"To the contrary, the objective evidence demonstrates that Mr Palmer actually believed that Universal held the copyright in the works, that he needed a licence to use them, and that he decided to go ahead without one because he was not prepared to agree to Universal's terms."