Clive Ain’t Gonna Cop It

I feel for the man, I really do.

On 30 April 2021 the Federal Court delivered judgment in Universal Music Publishing Pty Ltd v Palmer (No 2) [2021] FCA 434. According to Clive Palmer’s sworn affidavit evidence, he has “a keen interest in the publication of original poetic works”, has “regularly published poetic works”, and has been invited to share his poetic works at the Queensland Poetry Festival. His poetic works were “considered to be very moving and genuine” (according to his wife).

Clive described his creative poetic frenzy in issue in the proceedings in his affidavit as follows:

“In or about September 2018, I was sitting at home preparing for the upcoming Federal election and what the party was trying to achieve for ordinary Australians. While deep in contemplation, I wrote the words for “Aussies Ain’t Gonna Cop It”; that is, the words:

“Australia ain’t gonna cop it;

No Australia’s not gonna cop it;

Aussies not gonna cop it, anymore.

The words instantly resonated with me and the views and values of the UAP”.

Unfortunately, Clive did not recall until giving oral evidence at the trial that he had been inspired by Peter Finch’s “I’m Mad as Hell” speech in Network from 1976. Clive’s recollection of the words used by the Oscar winner was not quite there, and the words Clive used were different.

More unfortunately for Clive, Dee Snider of Twisted Sister had written and released the band’s most popular song “We’re Not Gonna Take It” in 1984, with the following chorus:

“We’re not gonna take it

No we ain’t gonna take it

We’re not gonna take it, anymore”.

Less fortunate still for Mr Palmer, on or before 11 October 2018 just after creating his magnum opus, for unknown reasons he coincidentally sought a licence from Universal to use Mr Snider’s song We’re Not Gonna Take It, but baulked at the offered $150,000 licence fee. He continued to instruct his agent on 30 October 2018 to “get the rights to that song”, but then decided to proceed with his own creative masterpiece.

When Dee Snider took issue and the Twittersphere erupted, including the following exchange:

Clive: “We believe in everyone’s right to choose and freedom of speech. Why try to stop us promoting freedom of speech & free choice?
Dee: “You “believe …” WTF?! Same reason kids can’t pull shit off Wikipedia to turn in as their own on a homework assignment. If you don’t know how free speech and free choice work, you shouldn’t be running for a public office. Cause you’re either too stupid and/or or too deceitful”.

Bad luck continued to plague Clive on the evidence front, as the written evidence of his creation was not available. Speaking of Dee’s reference to homework assignments, the dog had apparently eaten Clive’s homework. Justice Katzmann described what must have happened based on Clive’s evidence (at [219]) as follows:

“(3)    At 4am one morning in September 2018 Mr Palmer scribbled this progression of ideas up to and including the lyrics of ANCGI on a piece of a paper which he placed on his bedside table.

(4)    Mr Palmer did not regard that piece of paper as being in his control at the instant he placed it on his bedside table and that is why he did not include it in his discovery affidavit as a document which had been but was no longer in his control.

(5)    After he had placed the piece of paper on his bedside table, it was collected by a member of Mr Palmer’s staff and thrown away before Mr Palmer woke up. In other words, Mr Palmer wrote down his ideas in the night, presumably in order to have a record of them but before he woke up, members of his staff crept into his bedroom and disposed of that record.

(6)    Having discovered that the notes had been destroyed, Mr Palmer did not make another record what he had written or email the lyrics to party members and, although he said he discussed them with members of his family, no evidence was adduced from any member of his family to support his account.

The Court did not accept Mr Palmer’s account, finding (at [222]) that the words of his song were created by him changing the words from We’re Not Gonna Take It as part of a series of variations conveyed by Mr Palmer indirectly to his session musicians playing the Twisted Sister song.

Universal’s copyright in both the literary work and the musical work was found to be infringed. Instead of the originally offered licence fee of $150,000, the Court ordered Mr Palmer to pay a $500,000 licence fee ([358]-[479]), and $1,000,000 additional damages given the flagrancy of the breach (in particular [522]-[525]].

Mr Palmer was found to be a man of immense wealth with net worth is over $1 billion. In cross-examination “he claimed not to care about having to pay out $180,000 to Universal, since he deals in billions of dollars”. Will he accept/cop/take the verdict now, and should it have been higher?

The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your specific circumstances.

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