A familiar drum beat rang out in the Federal Court on Monday as Justice Anna Katzmann was played US metal band Twisted Sister's 1984 anthem We're Not Gonna Take It.
In a court fight that has been a long time coming, Universal Music is suing businessman and former politician Clive Palmer for alleged copyright infringement for using a cover version of the hit song in federal election advertisements in 2019 without a licence or paying the associated fee.
Clive Palmer, inset, says he does not need to pay to use a reworked version of the Twisted Sister song in his political advertisements. Dee Snider, right, is expected to give evidence.
The proceedings were filed in February last year and the five-day trial, conducted online, kicked off with that rousing drum beat on Monday.
Sydney barrister Patrick Flynn, SC, appearing for Universal Music – the exclusive licensee of the song, penned by Twisted Sister's frontman Dee Snider – told the Federal Court Mr Snider had given written evidence the hit was generally regarded as the band's "best and most popular song".
It was "not a song that was a flash-in-the-pan and then faded away from consciousness", Mr Flynn said in his opening address, and it "remains part of the rock pantheon".
He suggested Justice Katzmann also listen to the song "in [judges'] chambers on better equipment" after some minor audio glitches.
Mr Flynn alleged an advertising agency had approached Universal in late 2018 on behalf of Mr Palmer, but when the US music giant imposed a number of restrictions on licensing the song, including an advance copy of the full creative proposal, he "took" the song without a licence.
He said Mr Palmer "[ran] the gauntlet … they wouldn't be able to pull him off the air" before the election, and this was perhaps "the worst case one has seen" of a "cynical decision to continue infringement because it suited their purpose".
Mr Palmer's United Australia Party recorded a cover, in which Twisted Sister's famous "Oh, we're not gonna take it" chorus became: "Australia ain't gonna cop it, no Australia's not gonna cop it, Aussies not gonna cop it any more."
Mr Flynn said this approach had a number of advantages for Mr Palmer, including that there was no risk of disapproval of the nature of the political advertisements, which "evidence shows many people found grating and annoying".
He said Mr Palmer also did not have to pay a licence fee "but that might have been the least of [the advantages]", in light of $12 million Mr Palmer spent on advertising. He said there was evidence the advertisements were broadcast 18,649 times on free-to-air television and seen 17.5 million times on YouTube.
"It was a bit like an advertising blitzkrieg," Justice Katzmann said.
"Yes, your honour," Mr Flynn replied.
Mr Flynn said the minor lyric changes were "the most transparent of devices" to enable Mr Palmer to claim this was a new or different song.
Despite initially seeking a licence to use the song, Mr Palmer has claimed in his legal defence that the musical work underlying the hit was based on the tune of the18th-century hymn O Come, All Ye Faithful and Universal has no claim to its copyright.
Mr Palmer's barrister, Edmund Robinson, also argued his client's use of the song fell "squarely within" a "fair dealing" defence to copyright infringement, on the basis that the reworked song amounts to "parody". He submitted that if Universal Music succeeded in the case Justice Katzmann could order no more than "nominal damages".
Universal's lawyers say those arguments should be rejected and the claim the hit is based on a hymn is "fanciful".
Asked by Justice Katzmann if he was suggesting the claim about O Come, All Ye Faithful was an "after-the-event rationalisation … for not going through with the licence", Mr Flynn replied: "Yes."
The hearing continues.
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