‘Australia ain’t gonna cop it’: Understanding Clive Palmer’s Copyright Battle
Copyright protects the way an idea is represented, providing the owner automatic and exclusive rights to their creative works. This will generally mean the owner owns the right to copy, publish, communicate, and publicly perform the material as well as the moral right to attribution of authorship.
In this blog post, we will be looking at what the court will likely consider when determining whether former Federal MP Clive Palmer infringed Australian copyright law in his 2019 political advertisements.
The alleged infringement
In a series of political advertisements leading up to the 2019 election, the 1980’s Twister Sing song ‘We’re Not Gonna Take It’ was used with the lyrics:
‘Australia ain’t gonna cop it, no Australia’s not gonna cop it, Aussies not gonna cop it any more.’
Owners of the copyright, Universal Music, responded by launching infringement proceedings against Mr Palmer in the Federal Court.
Mr Palmer claims he wrote the words while “in deep contemplation” and that the work should not afforded copyright protection because it is not an ‘original work’ within the meaning of the Australian Copyright Act 1968 as it is a replica of the hymn, ‘O Come, All Ye Faithful’.
The copyright battle for musical works
Both musical works, meaning the melody and lyrics, and the sound recordings of any song are protected under the Copyright Act 1968.
As noted by Counsel for Mr Palmer, a song will only attract the protection of copyright law if it is ‘original’. This means that it must be the product of the author’s intellectual effort and not a copy of another work.
In determining whether Mr Palmer breached copyright, the court will need to:
- assess whether the song is protected under the Copyright Act;
- distinguish what makes the song original;
- identify which part has been copied or adapted; and
- decide whether this is a ‘substantial part’ of the song.
The ‘substantial part’ test
A person will have infringed copyright if a substantial part of the song is copied.
Perhaps the turning factor of the current case will be whether the song ‘We’re Not Gonna Take It’ satisfies the ‘substantial part’ test.
This involves examination of what makes the song original, to assess whether that specific component has been taken. Courts will often look to sheet music from both songs to recognise similarities in melodies, lyrics, structure and key.
In the case of Men at Work’s ‘Land Down Under’, the two bars taken from the famous Australian song ‘Kookaburra Sits in the Old Gum Tree’ was enough to satisfy this threshold, as they were found to be a critical feature which ‘stuck in the listener’s head’.
For Mr Palmer, although the rhythm of these songs is similar, the lyrics, structure and meaning are not, so the court will need to go through the ‘substantial part’ test to make an overall judgement.