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If you’re going to defend a satirical song from a copyright lawsuit, don’t attempt a bunch of stupid alternative arguments first

In a recent legal misstep, Australian mining billionaire and former politician Clive Palmer squandered his opportunity at the satire defense for unauthorized use of a Twisted Sister hit by first attempting a series of other absurd arguments.

By Leigh Beadon from Techdirt

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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