## Facts

- Universal Music Publishing Pty Ltd held an exclusive Australian licence in the musical and literary copyright of the song “We’re Not Gonna Take It,” and Songs of Universal Inc held assigned rights.
- Clive Palmer authorized the creation and use of “Aussies Not Gonna Cop It,” an adapted jingle used in United Australia Party advertisements during the 2019 federal election campaign.
- Palmer’s team sought a licence in 2018; Universal proposed about AU$150,000 and Palmer counteroffered AU$35,000. Negotiations ended without agreement.
- After negotiations failed, Palmer authorized recording and synchronization of the adapted jingle with at least twelve television advertisements and other campaign material distributed across television, radio, and online platforms.
- The court found the jingle’s music “strikingly similar” to the original song’s chorus and the jingle replaced the chorus lyrics with closely corresponding lines (substituting “Australia/Aussies” and “cop it”).
- After a cease-and-desist demand, Palmer publicly denied wrongdoing and asserted the original song had copied “O Come, All Ye Faithful.”
- Palmer defended the claim on originality/subsistence, lack of reproduction of a substantial part, and fair dealing for parody or satire under the Copyright Act 1968 (Cth).
- This judgment addressed infringement and remedies, including compensatory and additional damages.

## Issues

1. Whether copyright subsisted in the musical and literary works (including the chorus), notwithstanding alleged derivation from “O Come, All Ye Faithful.”
2. Whether the jingle reproduced a substantial part of the musical work and the lyrics of the original song.
3. Whether the use qualified as fair dealing for the purpose of parody or satire under s 41A.
4. How compensatory damages should be assessed (including a hypothetical licence fee), and whether additional damages should be awarded under s 115(4) based on flagrancy and related conduct.

## Decision

- The court held that copyright subsisted in the musical and literary works, including the chorus; resemblance to earlier material did not negate originality in expression.
- The court found reproduction of a substantial part of both the music and lyrics, emphasizing the chorus as the song’s memorable hook and a qualitatively substantial component.
- The court rejected the parody/satire defence because the use was principally political advertising and not genuinely directed to parody or satire of the original work, and the extent taken was not fair.
- The court awarded AU$1.5 million total damages, including AU$1 million in additional damages, and assessed compensatory damages by reference to a hypothetical licence fee for the use made.

## Legal Principles

- Reproduction requires objective similarity plus a causal connection showing the copyright work was the source of what was taken.
- “Substantial part” is assessed qualitatively (not by note-by-note comparison), focusing on the importance of the portion taken to the original work.
- Copyright originality concerns originality in expression, not novelty or originality of underlying ideas; use of pre-existing material does not necessarily defeat subsistence.
- Fair dealing for parody or satire turns on the real purpose of the dealing and fairness, including the amount taken and market effects.
- Compensatory damages may be assessed by a hypothetical licence fee reflecting what reasonable parties would have agreed for the actual use, even if agreement was unlikely in fact.
- Additional damages may be awarded where infringement is flagrant and deterrence is warranted; post-infringement and litigation conduct may bear on flagrancy.

## Conclusion

The court held that an unlicensed political campaign jingle copied a qualitatively substantial part of a well-known song’s chorus and lyrics, that parody/satire did not apply where the true purpose was campaign promotion, and that deliberate use after failed licensing talks justified substantial additional damages, producing an AU$1.5 million award.


Universal Music Publ’g Pty Ltd v. Palmer (No. 2), [2021] FCA 434 (Austl. Fed. Ct. 2021)