Clive Palmer’s United Australia Party is the latest political party to be the subject of a copyright claim for use of music in an advertising campaign (after Eminem successfully sued the New Zealand National Party for breach of the copyright of Lose Yourself).
Universal Music Group, the owners for the rights to Twisted Sister’s We’re Not Gonna Take It, have filed a claim against Mr Palmer personally for a television advertisement used by the United Australia Party. The ad features a song that repeats the refrain “Australia’s not gonna cop it anymore” in a similar rhythm to the Twisted Sister hit.
UMG claim that the Twisted Sister song is copied in substantial part, thereby infringing on their copyright pursuant to section 36 of the Copyright Act 1968 (Cth) (Act).
The last high-profile case in Australia on this issue was the highly publicised suit against the band Men at Work. They were alleged to have copied a melody from the folk song Kookaburra Sits in the Old Gum Tree for their hit song Down Under. Larrikin, the rights holder, successfully recovered damages and future royalties from the Men at Work song (see EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited 276 ALR 35).
When considering either how or whether a song has infringed on an existing musical work, the Court will need to consider:
- what makes the original song original, and what particular musical elements are an essential part of the work (such as melody, key, tempo, harmony and structure);
- the degree to which the original material is adapted, and
- whether or not the adaptation in the second song is ‘substantial’.
In the Kookaburra case mentioned above, the reproduction of only two bars of one melody reproduced in another song was substantial enough to satisfy the requirements of the Act for copyright infringement since it was a distinctive element of the song (in that case, a flute riff).
With regard to the reasoning in Kookaburra, Mr Palmer may have some difficulty defending his advertisement against Twisted Sister’s claim. It will be interesting to see how this case develops.