Universal Music Publishing Pty Ltd v Palmer

The relevant statutory provisions and some general principles 9 Copyright is a form of property, commonly referred to as intellectual property although it is also a form of industrial property. Copyright in music was described uncontroversially in evidence in this case as a commercial asset from which income can be earned, among other things, through licensing for use in advertisements. 10 Copyright law protects the particular form of expression of an original work, namely a work which is "the product of the labour, skill and capital" of its creator: IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 at [28] (French CJ, Crennan and Kiefel JJ, citing Macmillan and Co Ltd v Cooper (1923) 93 LJPC 113 at 117-118 per Lord Atkinson); at [70] (Gummow, Hayne and Heydon JJ). The general policy of copyright is to prevent unauthorised copying of particular material forms of expression that are the result of "intellectual exertions of the human mind": Sawkins v Hyperion Records Ltd [2005] EWCA Civ 565; [2005] 3 All ER 636; [2005] 1 WLR 3281 at [28] (Mummery LJ). But the protection is subject to numerous qualifications, exceptions, restrictions and defences, reflecting the purpose of copyright law, which is "to balance the public interest in promoting the encouragement of 'literary', 'dramatic', 'musical' and 'artistic works', as defined, by providing a just reward for the creator, with the public interest in maintaining a robust public domain in which further works are produced": IceTV at [71] (Gummow, Hayne and Heydon JJ). 11 WNGTI was first published in the United Kingdom on 25 May 1984. Even so, as the UK is a party to the Berne Convention (the International Convention for the Protection of Literary and Artistic Works concluded at Berne on 9 September 1886), the provisions of the Copyright Act apply in relation to it in the same way as they apply in relation to works first published in Australia and as if it had first been published in Australia: Copyright (International Protection) Regulations 1969 (Cth), reg 4(1). 12 Part III Division 1 of the Copyright Act deals with the nature, duration and ownership of copyright in works, Division 2 with infringement. 13 The nature of copyright in original works is described in s 31, which relevantly provides: (1) For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right: (a) in the case of a literary … or musical work, to do all or any of the following acts: (i) to reproduce the work in a material form; (ii) to publish the work; (iii) to perform the work in public; (iv) to communicate the work to the public; (v) to make an adaptation of the work (vi) to do, in relation to a work that is an adaptation of the first mentioned work, any of the acts specified in relation to the first-mentioned work in subparagraphs (i) to (iv), inclusive[.] … (2) The generality of subparagraph (1)(a)(i) is not affected by subparagraph (1)(a)(vi). … 14 "Musical work" is not defined in the Copyright Act, save for certain unrelated purposes. In Sawkins at [53] Mummery LJ observed: In the absence of a special statutory definition of music, ordinary usage assists: as indicated in the dictionaries, the essence of music is combining sounds for listening to. Music is not the same as mere noise. The sound of music is intended to produce effects of some kind on the listener's emotions and intellect. The sounds may be produced by an organised performance on instruments played from a musical score, though that is not essential for the existence of the music or of copyright in it. Music must be distinguished from the fact and form of its fixation as a record of a musical composition. The score is the traditional and convenient form of fixation of the music and conforms to the requirement that a copyright work must be recorded in some material form. But the fixation in the written score or on a record is not in itself the music in which copyright subsists. There is no reason why, for example, a recording of a person's spontaneous singing, whistling or humming or improvisations of sounds by a group of people with or without musical instruments should not be regarded as "music" for copyright purposes. 15 Later, at [56], his Lordship said that it was "wrong in principle to single out the notes as uniquely significant for copyright purposes and to proceed to deny copyright to the other elements that make some contribution to the sound of the music when performed, such as performing indications, tempo and performance practice indicators, if they are the product of a person's effort, skill and time". 16 A "literary work" is simply a written or printed work irrespective of its literary merit or lack of it: University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at 608 (which concerned examination papers); cited with approval in numerous cases including Computer Edge Pty Ltd v Apple Computer Inc. (1986) 161 CLR 171 at [11]. That point is underscored by s 10 of the Copyright Act in which literary work is defined to include a table or compilation expressed in words, figures or symbols and a computer program or a compilation of computer programs. 17 "Adaptation" is relevantly defined, also in s 10, in relation to a literary work in a non-dramatic form, as: a version of the work in a dramatic form and vice versa; a translation of the work; or a version of the work in which a story or action is conveyed solely or principally by means of pictures. "Adaptation" in relation to a musical work is relevantly defined in the same section to mean "an arrangement or transcription of the work". 18 For the purposes of the Act, a literary or musical work is deemed to have been reproduced in a material form if a sound or "cinematograph film" recording is made of the work. Similarly, any record embodying such a recording and any copy of such a film is deemed to be a reproduction of the work: see s 21(1). This provision applies in relation to an adaptation of the work in the same way it applies in relation to the work itself: s 21(2). 19 "Reproduction" means copying and does not include the production of a substantially similar result by independent work, without copying: EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444 at [49]-[50], [121] (Emmett J) (EMI v Larrikin) citing Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 618 and 623-624 and SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 at 472. 20 Section 14 relevantly provides that, unless the contrary intention appears, any reference in the Copyright Act to the doing of an act in relation to a work or a reproduction, adaptation or copy of a work is to be read as including a reference to a substantial part of the work. 21 As for infringement, s 36 is applicable. Insofar as it is relevant, it states: (1) Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright. (1A) In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in the copyright in a work, without the licence of the owner of the copyright, the matters that must be taken into account include the following: (a) the extent (if any) of the person's power to prevent the doing of the act concerned; (b) the nature of any relationship existing between the person and the person who did the act concerned; (c) whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice. 22 In other words, unless the Act otherwise provides, anyone who is not the owner or licensee of the copyright in a work who reproduces (copies) that work in a material form, publishes it, performs or communicates it in public, or adapts it will infringe the copyright. 23 The Act provides for exceptions for fair dealing with works for certain purposes including, relevantly, parody or satire. Those exceptions are contained in Division 3. The exception for fair dealing for the purpose of parody or satire is covered by s 41A. 24 Remedies are dealt with in Part V, remedies for infringement in s 115.

The defence 25 The defence was filed on 20 March 2019. It was amended nearly 16 months later, on 28 July 2020, well after Universal's evidence in chief had been served. 26 In the first iteration Mr Palmer denied that copyright subsisted in the musical work comprised in the song WNGTI. He contended that the musical work was "not an original musical work within the meaning of the Act" and denied that copyright subsisted in the literary work alleging that the UAP recording and videos use original lyrics and do not reproduce the literary work. In the alternative, he denied that copyright subsisted in the literary work on the ground that "the incorporation and reproduction of such works is fair dealing for the purpose of parody or satire" within the meaning of s 41A. He denied the allegations of copyright infringement on the same basis. He admitted that a licence was required for the use of the literary work, but denied it was required for the use of the musical work, and asserted that he had not used the literary work. 27 His position altered significantly with the filing of the amended defence. 28 In the amended defence Mr Palmer withdrew his assertion that the musical work was not an original musical work within the meaning of the Copyright Act and admitted all allegations relating to the subsistence and ownership of the copyright in both works. Nevertheless, he claimed that the UAP recording and videos did not incorporate a substantial part of the musical work or the literary work and therefore did not infringe Universal's copyright. In the alternative, he claimed that the UAP recording and videos did not infringe Universal's copyright because the incorporation or reproduction of the musical and literary works constituted "fair dealing for the purpose of parody or satire" within s 41A.

The issues 29 On 4 December 2019 I ordered that the parties file an agreed statement of facts and issues. A document answering that description was filed on 3 March 2020. An amended version was tendered at the hearing. 30 The final version of the agreed statement identifies the following questions for determination: (1) Did the UAP recording and UAP videos contain a reproduction of a substantial part of the music and/or lyrics of WNGTI? (2) If so, did any such reproduction fall within s 41A of the Copyright Act because it was fair in all the circumstances and made for the purpose of parody or satire? (3) What relief should be granted if Universal's copyright is found to have been infringed in the music or the lyrics or both, including: (a) in what sum general damages should be awarded; (b) should additional damages be awarded under s 115(4) of the Copyright Act and, if so, in what amount; and (c) should injunctive relief be granted; and, if so, in what form?

The witnesses 31 Evidence was given on Universal's behalf by Mr Snider, four Universal executives, one of its lawyers, a musicologist and a music industry expert. 32 Mr Snider affirmed four affidavits, one in support of an interlocutory application, and three in connection with the substantive dispute. In two affidavits affirmed on 1 February 2019 and 23 April 2019, Mr Snider discussed the history of the composition of WNGTI; the sale of the copyright to Universal; the approval process for the use of his songs in advertising; and the manner in which he became aware of, and his reaction to, the UAP advertisements. The fourth affidavit was affirmed during the course of the trial. It concerned a social media post by Mr Palmer after Mr Snider had testified. Mr Snider's credit was not called into question in cross-examination and no submission was made that his evidence should not be accepted. He impressed me as a witness of truth. 33 The Universal executives from whom affidavits were taken were Karen Ann Don, UMP's Senior Vice-President (Legal & Business Affairs); Karina Jean Masters, UMP's Director of Synchronisation & Marketing; Andrew Richard Charles Jenkins, the President of the Australia and Asia-Pacific region for Universal's corporate group and a director of UMP; and Thomas Herbert Eaton, the Senior Vice-President of Music for Advertising of Universal's corporate group. Their evidence covered a range of topics including the nature of the applicants' businesses; Universal's rights in WNGTI; action taken by Universal after becoming aware of the UAP advertisements; and Mr Palmer's response; the considerations relevant to the licensing of music in advertising; correspondence with UMP on Mr Palmer's behalf about licensing WNGTI; the approval process for use of US songs in advertising; and a hypothetical licence fee for the use of WNGTI in the UAP advertisements. 34 Sebastien David Tonkin, a solicitor, affirmed a number of affidavits in the proceeding, not all of which were read at the final hearing. Two of the affidavits read at the final hearing annexed or exhibited the UAP advertisements and various publications including media articles and social media posts about UAP's advertising campaign, UAP advertisements, and this proceeding. Two other affidavits related to Mr Palmer's non-compliance with discovery orders. The last in time, filed on 13 October 2020, detailed some of the information gleaned from the discovery and subpoenaed documents. 35 An affidavit was also provided by Karl Richter, the founder of an Australian music supervision (procurement) company which assists clients with selecting and sourcing music for use in various projects and which has been involved in sourcing music for advertisements for a wide range of products. Mr Richter gave independent expert evidence on a hypothetical licence fee for use of WNGTI in UAP advertising. 36 All these affidavits were read and all witnesses, with the exception of Ms Don and Mr Tonkin, attended for cross-examination. 37 Universal's musicologist was Professor Andrew Ford, a composer, writer, broadcaster, and music scholar who has enjoyed a long academic career. He affirmed two affidavits, both of which were read, and was the co-author of a joint expert report. He also gave evidence in concurrent session with the musicologist retained by Mr Palmer. 38 Mr Palmer gave evidence. He affirmed two affidavits precisely one year apart and was extensively cross-examined. His musicologist was Dr Robert Davidson, a composer, double bass player, researcher, senior lecturer in music at the University of Queensland. Dr Davidson affirmed an affidavit on 14 August 2019 and was the co-author of the joint expert report. 39 Mr Palmer also relied on evidence from David Wright and James McDonald. Mr Wright swore two affidavits, Mr McDonald one. Mr McDonald was the National Director of the UAP during the relevant period. Mr Wright is the director of Creative Division Pty Ltd (trading as Atomic Pixel). He was engaged by the UAP to provide production services for its advertising campaign in the 2019 federal election. He was involved in the development of the UAP advertisements and deposed, among other things, to discussions with Mr Palmer and correspondence with Universal about a licence. In cross-examination it emerged that he had also run as a candidate for the UAP in the 2019 election. 40 During the course of the hearing, Mr Palmer's solicitor, Sameh Morris Iskander, filed an affidavit. Annexed to that affidavit were documents which should have been discovered by Mr Palmer. 41 All the affidavits were read and, with the exception of Mr Iskander, each deponent was required for cross-examination. Unusually, Mr Palmer testified after the other two lay witnesses, Mr McDonald and Mr Wright. No explanation was offered but it is reasonable to assume that this unusual course had at least something to do with the fact that the hearing took place during the week before the Queensland election in which the UAP was fielding candidates in every seat. 42 While Mr McDonald was concerned to protect the UAP, I found him to be generally honest. 43 Mr Wright's affidavits were not full and frank. On occasions during his oral evidence, his answers were punctuated by inappropriate giggles. I formed the view that these were nervous giggles. For the most part, however, I concluded that his oral evidence was truthful. 44 Mr Palmer, on the other hand, was a most unimpressive witness. In significant respects his evidence was inconsistent with the contemporaneous records and the evidence of both Mr Wright and Mr McDonald. I deal with his evidence at some length later in these reasons. It is sufficient to observe at this point that he was an unreliable witness whose evidence was at times incredible.

The facts 45 Many of the relevant facts were either admitted or not in dispute. Unless otherwise indicated, none of the facts set out below was controversial and I make findings accordingly. A good deal of the narrative is drawn from Universal's meticulous written submissions which in these respects were not contradicted.

WNGTI 46 The WNGTI music is an original musical work and the WNGTI lyrics are an original literary work within the meaning of those terms in the Copyright Act. 47 Mr Snider is the author and composer of WNGTI. He started writing it in 1980. He finished it in 1984. 48 Mr Snider joined Twisted Sister in 1976 as its lead singer. He was also the band's sole songwriter. Twisted Sister was active until 1987, when it broke up. It reunited in 1988 and its members continued to work together and perform publicly throughout the 2000s. It disbanded in 2016, shortly after the death of its drummer. Since then, Mr Snider has continued touring, both on his own and with a backup band, playing Twisted Sister songs as well as songs from his solo work. Mr Snider has also been involved in many solo projects, including hosting radio programs, appearing on several reality TV shows, and doing voice-over work for television, animation and computer games. 49 Until 1987, Mr Snider wrote all the music and lyrics to the songs he performed. Thereafter he wrote a number of albums in partnership with other songwriters. He gave unchallenged evidence, which I accept, that songwriting always came naturally to him. He explained that he felt he had something to say and knew how to say it. He also gave unchallenged evidence, which I also accept, that the integrity of his songwriting was, and remains, very important to him. 50 Mr Snider's songwriting process almost always began with two elements: a title, which usually features prominently in the lyrics, and a short melodic idea, which is the first thing he would record. He would then flesh out the rest of the song musically, on a guitar, and write the other lyrics, which were strongly inspired by its title. 51 The process involved in the writing of WNGTI was no different. Mr Snider deposed: In my usual process, working from a list of potential song titles that I had thought up, I sang the entire chorus of We're Not Gonna Take It into a tape recorder - that is, the words "We're not gonna take it. No we ain't gonna take it. We're not gonna take it, anymore". At that point I could not come up with a satisfactory verse and bridge for the song so I put it to one side for future development and use. I knew I had something special in this song (even telling my band and our producer at the time Eddie Kramer that I had a "hit" in the works), so I needed to make sure the rest of the song was as strong as the chorus. Over the next few years, whenever I was working on new song ideas, I would return to the chorus I had written for We're Not Gonna Take It and try again to finish it properly. It was only in the winter of 1982 that I finally was able to complete it. Generally, while Twisted Sister was recording one release, I would be working on the songs for the following album. Throughout 1982 and 1983, I continued to "flesh out" We're Not Gonna Take It (along with all the other songs for what was to become the album Stay Hungry, released in 1984). I did not present the song to the rest of the band until late in 1983, when we began demoing new songs for Stay Hungry. At no stage did any other person (including the other members of Twisted Sister) contribute to writing the music and lyrics of We're Not Gonna Take It. As with all my songs, the combination of words in the title of We're Not Gonna Take It inspired everything else about the song, especially its lyrical content. As an angry, frustrated, younger man (I was 25 in 1980) I wanted to write a song to express not only my emotional state, but one which I felt was shared by our audience. I wanted it to be an anthem that everyone could sing or shout along to when they heard it. 52 Mr Snider's musical influences are many and varied. He is unaware of ever having consciously copied a musical work or lyrics. As he readily acknowledged, however, he was inspired by others. At the time he wrote WNGTI, he recalls deriving inspiration from the Def Leppard 1983 album, Pyromania; such hard rock albums as Alice Cooper's School's Out; and the pop/rock anthems of the English rock band, Slade. 53 WNGTI was first released as a single on 27 April 1984 and then appeared on Twisted Sister's third album, Stay Hungry, which was released on 10 May 1984. It was an immediate international commercial success. It reached no. 21 on the US Billboard Hot 100 singles chart, no. 6 in Australia, no. 5 in Canada and no. 2 in New Zealand. It was certified as a gold record in Mexico, Sweden and the US (where the Stay Hungry album achieved platinum status three times) and platinum eight times in Canada. It is generally regarded as Twisted Sister's best and most popular song and its popularity has grown over the years, so much so, according to Mr Snider, that these days it is "practically a folk song". It was Mr Snider's most commercially successful song. 54 WNGTI has been licensed for use in musical theatre, films, and television, including the Broadway musical and film productions of Rock of Ages; advertisements for the film Charlotte's Web (2006); films such as The Emoji Movie (2017) and Ready Player One (2018); and several television series such as Young Sheldon and Person of Interest. It has also been used for advertising purposes on many occasions and in various parts of the world. And Mr Snider has been asked to perform the song for major events on numerous occasions to diverse audiences and for a variety of causes. 55 As Mr Snider observed, WNGTI has "a strong message of defiance, but the lyrics are quite non-specific". It was important to him that the message not be directed to any particular authority figures or causes. He believes that this generic quality contributes to the song's enduring appeal. He has heard it played at sporting events, rallies, and protests "of all kinds". According to Mr Snider, many people consider it one of the greatest songs of rebellion ever written. It has appeared on many lists on the subject. 56 Several American politicians have used WNGTI in their election campaigns. Mr Snider performed it for Arnold Schwarzenegger's gubernatorial campaign, although to his knowledge it was not licensed for any recorded advertisements in the campaign. In 2012 Paul Ryan, then a candidate for president in the Republican primaries, used it at one of his campaign rallies, albeit without Mr Snider's permission, but ceased to use it at Mr Snider's request because Mr Snider did not want his song to be associated with Mr Ryan or his views and policies. Mr Snider believes that, more than any other of his songs, his image and personality are very closely associated with WNGTI. 57 In 2015 WNGTI was used as the theme song for Donald Trump's first presidential campaign, initially with Mr Snider's permission, which he said he granted because of his then-friendship with Mr Trump. Mr Snider explained that they had been involved in several charity projects together and he had appeared a number of times on Mr Trump's reality television show, Celebrity Apprentice, and through them he came to like Mr Trump and his family. But when he found he was unable to agree with many of Mr Trump's positions and policies and did not want others to think that he approved or endorsed his campaign, he asked him to stop using the song and Mr Trump obliged.

Universal Music Publishing and Songs of Universal 58 UMP and Songs are members of the global corporate conglomerate known as the Universal Music Publishing Group (UMPG). UMPG administers and in many cases (including licensing songs for use in advertising) controls as exclusive licensee the copyright in the songs in the UMPG catalogue. On 1 January 2019 UMP became the exclusive licensee in Australia of the copyright in WNGTI, with rights to sue for infringements before that date. 59 Universal has published Mr Snider's music since the 1980s. He has always enjoyed a very good relationship with Universal which, he said, was built on years of trust. 60 In 2015 Mr Snider assigned the copyright in his songs, including WNGTI, to Songs, although he retained his interest in the so-called "writers share" or performing rights. Before and after the assignment of the copyright, Universal sought his approval for the synchronisation of his songs with visual material, such as in advertising or films. That was important to Mr Snider. As he explained it: The song-writing process is a very emotional process for me; it comes from the heart. It would be devastating to me if any of my songs - but particularly We're Not Gonna Take It - were licensed for a purpose that I consider to be offensive or contrary to my beliefs, because I would feel like I was supporting a cause against my will. I want to prevent my music being used in association with products, companies or messages which I find objectionable. I view this as a fundamental and valuable part of my rights as a performer and songwriter. Whenever I approve the use of one of my songs, I have to be satisfied that the proposed use would not damage my reputation or my commercial interests. Universal usually provides me or my management team with details about the proposed use, including who the prospective advertiser is, in order for me to make an informed decision. If I need more information, I ask for it. That said, I try to take a pragmatic approach to potential licensing requests and am open to maximising the value of my songs. In the past, when I have been presented with a licensing opportunity that is not immediately attractive to me, I have looked for the positive characteristics of the brand or company and considered whether any such characteristics are sufficient to overcome my initial reluctance. This is particularly so if the licensing opportunity is for a significant sum of money. 61 Since the assignment of the copyright in 2015, Universal has regularly notified Mr Snider's management of requests to use WNGTI, although the agreement with Songs does not require it.

Clive Palmer 62 Mr Palmer is a well-known Australian businessman. It is an agreed fact that he has a net worth exceeding AUD1 billion. Mr Palmer has been in business for over 40 years. He also has a keen interest in politics and has long been involved in it. He was a member of the National Party for nearly 40 years and for four years, following its amalgamation in Queensland with the Liberal Party, the Liberal National Party, before founding and leading the Palmer United Party. It is common knowledge that Mr Palmer served as a member of the House of Representatives in the Australian Parliament for the Queensland seat of Fairfax between 2013 and 2016 and that he was a candidate for the Senate on the UAP ticket in the last federal election. 63 In February 2018 Mr Palmer announced that the Palmer United Party would contest the 2019 election. In July 2018 the party was rebranded the UAP and registered with the Australian Election Commission. At all the relevant times Mr Palmer was its registered officer. 64 In around July 2018 the UAP began a nationwide media campaign in preparation for the 2019 election. To win support, it deployed various forms of media, including print, radio, television and online advertising, and text messaging. It also distributed T-shirts, worn by its members and supporters, upon the back of which the words "Aussie's Aren't Gonna Cop It Anymore" were printed. It fielded candidates in every seat in the House of Representatives and the Senate. 65 Although there is no direct evidence on the point, it is possible that Mr Palmer knew that the song had been used in the Trump campaign in 2016. Having regard to his long business career and keen interest in politics, Mr Palmer is likely to have followed the Trump campaign and may well have drawn inspiration from it. There is some support in the evidence for this. An appearance by Mr Palmer on the Nine Network's Today program featured in a segment on the American television show, Last Week Tonight with John Oliver, which found its way into evidence in an exhibit to one of Mr Tonkin's affidavits, admitted without objection. It is sufficient to refer to the opening: OLIVER: But perhaps the most eye catching candidate is Clive Palmer, head of his own United Australia party. He's a brash businessman who's pushing a populist anti-establishment platform. If that's already reminding you of someone, just wait till you hear him yelling at a news anchor. [Cuts to clip from the "Today" show on Channel 9. Clive Palmer is on the Gold Coast and is wearing a suit with a red tie.] PALMER: "We've got to stop about the fake news people attacking individuals. As I said, my wealth is $4,000 million dollars. Do you think I give a stuff about what you personally think or anyone else I might care about this country? God bless Australia. Put Australians first." OLIVER: Wow. That's all pretty Trumpy right there. Arrogance, check, Red tie, check. He even has billboards with his campaign slogan "Make Australia Great", which notably doesn't say "Make Australia Great, again". [An image of Palmer sporting the thumbs up sign appears behind Oliver in front of billboard "Make AUSTRALIA GREAT!!"]

Negotiations with Universal for a licence to use a "re-recording" of WNGTI 66 In October 2018, Mr Palmer instructed Mr Wright to approach Universal to negotiate a licence to use in advertisements for the UAP a "re-recorded version" of the Twisted Sister track with possible lyric changes. It is an agreed fact that in his dealings with Universal Mr Wright was acting as Mr Palmer's agent. 67 On 11 October 2018 Mr Wright emailed UMP with the following inquiry: We have a major client that wishes to produce a local talent cover version of the Dee Snider track "We're not gonna take it". The usage would be specially for a national TVC campaign, and only a portion of the track would be used. I understand that UMPG acquired all rights to Twisted Sister back in 2015. Given that Dee Snider wrote the track I am making you the first port of call for this. I understand you may have rights to the recorded works, and the mechanical usage rights may differ. Can you advise if you can help with this enquiry, or refer us to the entity that can help? (Emphasis added.) 68 The "major client" was Mr Palmer. 69 The next day Selina Meuross replied, copying in Ms Masters, who was her supervisor. Ms Meuross confirmed Mr Wright's understanding and invited him to complete an advertising licence request form which she attached to her email. 70 Later that day Mr Wright submitted a completed form, identifying his client as the UAP and the product being advertised as "United Australia Party - workers rising up concepts". The term of the proposed licence was "ASAP until June next year". The proposal was that the song would be used on the ABC, the internet, including the UAP website, and YouTube. The form provided the following information about the song: 71 On 16 October 2018, based on that limited information, Ms Meuross quoted a licence fee of $150,000+GST for eight months, subject to a signed contract and the approval of Mr Snider. The quote was valid for 30 days. But there was a proviso. Ms Meuross stipulated: Please note that this is very much subject to writer approval, and before we send it off for clearance we will need the full creative, lyric changes, and name of the local artist that will be covering the song. The cover must strictly not be a sound-alike. 72 Mr Wright responded within the hour. He said that he would speak with "the client" and get back to her soon. He said he was "fine with not being a sound alike", adding: "I had only gone down that path [that is, opted for a sound-alike] as I assumed it might be more difficult to get approval of the original recorded version with the original artists". I interpolate that Ms Masters' evidence was that a "sound-alike" in this context is a re-recording that sounds like the original master recording, the rights in which may be owned by an unrelated third party. 73 Mr Wright then inquired: Is there any chance we can access that for a larger fee? 74 Ms Meuross replied: Hi David, if you would like to use the original Twisted Sister master recording you will have to contact the master owner/record label (Warner Music) and liaise with them separately for a quote to use their recording. Of course if you do choose to use the original recording you won't be able to change the lyrics/re-record your own version. We'll also have to re-quote so let me know what the client decides to do. As for the timeline, it's really difficult to determine as it's different for every case. Once we have the final terms laid out we will put it to the writers for approval straight away, and it can take up to a week or more for us to get feedback from them. If there is a tight deadline for this I would advise that the client decides what to do re the recording asap. 75 I interpolate that in cross-examination Mr Wright said that he understood from this email that Universal was now saying that they did not own 100% of the copyright and/or that "they were fishing for more fees". It is clear that he understood the difference between publishing rights (the right to use the music), held by Universal, and mechanical rights (the right to use the master recording). Yet he purported to be taken aback by Ms Meuross's reply. I do not consider this evidence credible in the light of his opening remark to Universal in his initial email, which indicated that he was aware of the possibility that Universal did not hold all the rights, in particular "the mechanical usage rights". 76 In a subsequent email, also sent on 16 October 2018, Ms Meuross explained that the quoted fee reflected the fact that "this is a nationwide political advertising campaign that will use a premium song from our catalogue" and "the fact that it is a re-record", albeit with lyric changes, "further increases the fee". She asked Mr Wright to bear in mind that, if he did use "the master", UMP's fee would be lower but he would also have to pay Warner Music a separate fee on top of UMP's publishing fee. 77 Ultimately, however, nothing came of either inquiry. Mr Palmer baulked at paying the licence fee. Mr Wright made a counter-offer of $35,000. UMP rejected the counter-offer and negotiations broke down. 78 Cross-examination of Mr Wright revealed that in the meantime he was developing some videos which incorporated WNGTI. 79 On 23 October 2018 Mr Wright sent an email to "Terry Smith" the text of which began with the words "Here is a new one for WNGTI" and contained a series of hyperlinks to "new and "revised videos for/of WNGTI". 80 On 25 October 2018 Mr Wright sent another email addressed to "Terry Smith", carrying the subject line: "FW: Current versions of WNGTI including WA GSt". This email contained hyperlinks to the videos hyperlinked to the 23 October email as well as other emails with different themes. 81 On 27 and 29 October 2018 Mr Wright sent two further emails to "Terry Smith" containing hyperlinks to videos. 82 Not all the hyperlinks in the emails worked by the time of the trial. Mr Wright was cross-examined about this but was unable to offer a reason. Some of the hyperlinked videos were in evidence. They were tendered by Universal. Each of those videos featured Twisted Sister's original recording of WNGTI synchronised to images and text urging the viewer to "VOTE [1] UNITED AUSTRALIA PARTY". Universal submitted that, given the references in the emails to "WNGTI", it should be inferred that the other videos also featured the Twisted Sister recording of WNGTI. The inference is a reasonable one. No argument to the contrary was advanced. In the circumstances that is the inference I draw. It is also reasonable to infer that at this point in time Mr Palmer was contemplating using the original recording in the UAP videos. 83 Mr Wright testified that "Terry Smith" was an alias for Mr Palmer. Evidence admitted without objection, included in an exhibit to Mr Tonkin's second affidavit, indicates that this was a name Mr Palmer used while acting as a shadow director of Queensland Nickel. The reason Mr Palmer felt that he needed to conduct this correspondence by concealing his true identity was not explored in cross-examination. But it is self-evident that he felt he had something to hide. 84 On the morning of 29 October 2019 Mr Wright apparently had a conversation with Ms Meuross in which she reiterated the position she had taken in her last email. Later that morning Mr Wright followed up on that conversation with an email. 85 In the email to Ms Meuross Mr Wright explained that the nature of political advertising is such that he was not able to divulge "our strategy in an open manner", lest "the integrity of the campaign" be compromised. He went on to say: I understand that you require some information. What I can reveal is the following; there would be nothing racist, sexist or misogynistic, religious, or anti LGBTI etc, and that the topics will be more about fiscal debate for equality and fairness for the masses within the various demographic's [sic] areas. The intent is simple clean messaging with no spoken words. 15 Second EXAMPLE: If we approve your requested fee of $150,000 fee, we need it to cover off until the election. We will need to extend the usage until 12 months to cover off in the unlikely case that they will call it very late. There are reasons that this is unlikely, regardless we need to cover off on that. A high-quality combined artist session would be the basis of the recording. The members form a very strong 11-piece high energy power ballad band. It would not be a shabby rendition. 86 Once again the only change proposed to the lyrics of the chorus to WNGTI was in the first line (from "We're" to "Australia's"). 87 Ms Meuross replied early that afternoon. She said she was happy to make the term 12 months but would have to push the fee up to $160,000 to cover the extra four months. She also sought more information about the "strong images" that would be used. She said that once she received that information she would be happy to put the request before the writer (Mr Snider) for approval. She emphasised, however, that "the writer will need to see the final video or at least a final storyboard", that this was Universal's invariable practice and it was "non-negotiable". 88 At 5.57pm Mr Wright emailed "Terry Smith" with hyperlinks to a number of videos including three "with word change", presumably from "We're" to "Australia's" and four advertisements on various subjects "as approved". 89 At 9.46am the next day, 30 October 2019, Mr Wright wrote back to Ms Meuross: A little effort could be made to ensure client satisfaction. As the suggested fee is a premium for political use, it must come with the liberties and freedoms that are required for the short sharp turn around of a political campaign. No agreement can be considered to have the campaign vetted by an offshore writer/musician that is receiving a fee for license, or the fee receiving artists management. Even if your demand was not perceived as unreasonable for a political campaign, there is not enough time for such a drawn-out process. This is a national campaign that is extended the courtesy of political due process by law. The fiscal offer is as previously stated. $150k for up to 12 months. There is no agreement to third party entities approving our campaign elements. This is non-negotiable. Please return by 3pm Friday the 2/11/18 with an approval if you would like to be considered for the new business. A decision will be made between the tracks that are being explored, and the ease of working with the supplier involved. To earn the account, there is a requirement that a supplier is working for us to streamline processes. 90 As Universal observed in their submissions several observations can be made about this email. First, Mr Wright was adamant that Universal and Mr Snider would not be permitted to approve the advertising in advance. Second, although Mr Wright referred to other tracks "being explored", no evidence was given of what those tracks were and, if other songs were being considered, none was eventually selected for the UAP videos presumably because none of the possible alternatives had the benefits that WNGTI offered. Third, prior approval from the songwriter remained a sticking point for Universal. In cross-examination Mr Wright did not accept that this had led to an impasse in the negotiations. He purported to be unconcerned about the issue, saying "I knew that we were in a negotiation pattern, as one does in business …". He testified, based on his experience, that even that would have been negotiable for the right price. 91 At this point Ms Masters entered the fray. Until then she had only been indirectly involved, having been copied into the correspondence. This time it was she who replied to Mr Wright, advising that the approval of the writer was "standard procedure for any synchronization use", irrespective of the nature of the campaign; that Universal had the right to negotiate terms and quote on fees for the publishing rights they considered acceptable, based on terms and variations he might supply; and that if Mr Wright did not find those terms acceptable, he could select other music that was "easier to clear" for the proposed use. To this end she offered to put him "in touch" with Universal's production music arm. 92 Two hours later Mr Wright replied: Thank you for your response. We are hearing verbatim about the hurdles and obstacles set out in a pattern that leads to a high budget, but no client satisfaction. What we require is some initiative and an attempt to ensure client satisfaction is performed in a streamlined, non-intrusive, fair and reasonable manner. Political strategy campaigns do not fall under the normal banner. Hence the additional fee loading you are proposing. If a premium is paid because it's a political campaign, the fee covers certain considerations. To charge a premium because of something, and not allow consideration of that very thing can easily be seen as unconscionable and is definitely unreasonable. The rights you refer to are the basis of an internal agreement with yourself and an artist and are not rights with your client. This is new business. With a client, you are at liberty to see if an agreement can be met where a fair and reasonable price for a usage, based on a given set of control parameters. If you have no client, you are not acting in the commercial interest of the firm, nor the artist. Could you have some thought on how one could appease the 'system' that does not appear to be designed for Political Strategy campaigns, and still forge a relationship with a new business client and raise the annual turnover slightly. Might I suggest we provide 1 x example mock up, and are given no go zones that the Writer feels he does not want the re-recorded, word altered version to represent? This to my mind still seems unreasonable considering we are being charged at the political rate, but it might be a valid lateral way of moving beyond your current hurdle, assuming you are actually interested in securing the business? 93 Ms Masters was unmoved. She told Mr Wright in a return email why UMP required "clear and precise creative details" and that the licence fee was not just affected by "the political context of the use" but also by the fact that the proposed use was for a "re-record" with a change in the lyrics. She said that these were "all fair and standard conditions of any licence" in which Universal enters, whether with a music supervisor, advertising agency, TV or film production company, or short-film maker. She also said that the writer was entitled "to view and approve the final creative as to how the song will be used" but at this stage she indicated that "[a] proposed storyboard would be fine". If the client was not comfortable with this, she suggested he look at an alternative song that might be easier to clear. 94 This email went unanswered. It is an agreed fact that it was at this point that the negotiations broke down. 95 That evening Mr Wright emailed Mr Palmer ("Terry Smith"). In that email he provided the following "copyright update": Universal are still being sticklers for their rules regarding us showing all our concepts to the writer in order to seek approval for his music. Whilst that's not an issue for soap powder, it's a big issue for us because we don't want to expose our deck to anyone too early. I doubt he has any political alliances within Australia, but we could not assume the same with the music publishers. At least I would not assume that. I note that It [sic] was used for Schwarzenegger's campaign and Dee Snider agreed with the usage in 2003. In 2012 Snider asked Republican vice-presidential running mate Paul Ryan's camp not to play his hit song in their campaign. Its also been used for a teacher strikes and for and Pro-Choice campaigns, which he approved. I also noted that he is also a performer for hire, and this is managed via a different agent. Perhaps this is another avenue to communicate with him, but the final negotiation here in AU appears to sit with Universal. Interestingly, he is doing a smaller sized tour here in Australia from January to audiences ranging from 550-1000 PAX, which I understand are sold out since August this year. 96 Mr Wright claimed in evidence that his only concern was that the UAP's proposal might "leak". But the email indicates that he was also keen to secure Mr Snider's approval. At the same time his evidence revealed that he was also concerned that obtaining his approval would have "delayed the process" and delays in a political campaign are undesirable.

The development of the lyrics to ANGCI and the UAP recording

The evidence of Mr Wright and some further contemporaneous documents 97 In his first affidavit Mr Wright said nothing about the development of either ANGCI or the UAP recording. In his second affidavit he said that ANGCI, as used in the advertisements, was performed by session musicians he had arranged to perform it. He deposed to telling these musicians in "a couple of short telephone conversations" not to take their performance too seriously, to give the song "a good belt", to sing it "like an old 80's rocker" and to "have some fun with it". He also deposed that he told them that the performance style should be "in your face" but that "it should not be an exact sound-alike of the vocals in We're Not Gonna Take It", consistent with the request made by Universal. 98 A somewhat different picture emerged in cross-examination, a cross-examination apparently based on discovered documents. The failure to provide a full and frank account of the history in evidence in chief reflects adversely on his credit. 99 For a start, Mr Wright did not arrange for the session musicians to perform ANGCI. 100 Rather, the cross-examination revealed that Mr Wright instructed local session musicians to perform a number of takes of (the chorus of) WNGTI with variations. It is not clear when those instructions were given or the order in which the takes were recorded. But the recordings were completed by 13 November 2018, within two weeks of the breakdown in negotiations for the licence. Mr Wright testified that there were 14 takes and 14 recordings were tendered. The effect of Mr Wright's evidence is that he regarded "cop" as a variation of "take". 101 Mr Wright sent the recordings to Mr Palmer for his approval on 13 and 14 November 2018. They were dispatched in two emails to the "Terry Smith" account. 102 The first email began in this way: Hi Clive, MUSIC Here is a link to a series of takes for 'we ain't gonna take it'. They are about 8 megs each so I could not easily email them as clips, but you can right click and download from each file here. The hyperlink to the files followed. 103 The second email attached another hyperlink and included this message (without alteration): I am not sure the cop it one is the best as it sounds like 'we're not going to carpet'. Good if we were advertising floor tiles. You can't unhear this now. 104 In their submissions Universal described the evolution of ANGCI from WNGTI in the following way, based on the electronic files which became Exhibit E. Mr Palmer did not take issue with the description. Version 1 below is virtually identical to the chorus of WNGTI. Version 6 is the one upon which Mr Palmer settled. V1_LYRIC_1.WAV / V2_LYRIC _1.wav (Version 1) We're not gonna take it Oh no, we ain't gonna take it We're not gonna take it Anymore (x2) V1_LYRIC_5.wav / V2_LYRIC _5.wav We're not gonna take it [You know] we're not gonna take it We're not gonna take it Anymore (x2) V1_LYRIC_4.wav / V2_LYRIC _4.wav Australia ain't gonna take it No Aussies are not gonna take it We're not gonna take it Anymore (x2) V1_LYRIC_7.wav / V2_LYRIC _7.wav Australia's not gonna take it Aussies not gonna take it We're not gonna take it At all (x2) V1_LYRIC_6.wav / V2_LYRIC _6.wav Australia ain't gonna take it Australians are not gonna take it Aussies not gonna take it At all (x2) V1_LYRIC_2.WAV / V2_LYRIC _2.wav (Version 6) Australia ain't gonna cop it No Australia's not gonna cop it Aussies not gonna cop it Anymore (x2) V1_LYRIC_3.wav / V2_LYRIC _3.wav Australia ain't gonna cop it No Australia's not gonna cop it Aussies not gonna cop it At all (x2) 105 On 16 November 2018, and with apparent indifference to the want of a licence, Mr Palmer authorised the creation of the UAP recording, which Universal described as "a cover version" of WNGTI. 106 That day, Mr Wright emailed Mr Palmer, again to the account of "Terry Smith", with the subject line: WGTI Daves remix version - raised vocals 107 Mr Wright informed Mr Palmer that he had "done a remix of this at [his] end to broadcast - 12 mastering lever, and raised the voice a little in the process". He asked Mr Palmer whether that was an improvement as far as he was concerned and indicated his view that "this version sounds quite a lot better ...". The body of the email also contained a hyperlink which was not working at the time of the trial. Mr Palmer responded within hours: "Well done that it [sic]". 108 A couple of hours later, Mr Wright sent another email to Mr Palmer with the subject line: WNGTI with COP in graphics and Musician reimbursement The email contained a hyperlink to "a tester version with the word 'cop' in the graphic to match" and sought authorisation for the musicians to be reimbursed. The hyperlink was inaccessible. In cross-examination Mr Wright accepted that the subject line was a reference to WNGTI "with the lyric variation whereby 'cop' is substituted for 'take'" and the word "cop" also appeared in the graphics. Mr Wright conceded, in effect, that Mr Palmer had approved the change. 109 In cross-examination Mr McDonald confirmed that ANGCI was an evolution from WNGTI. He testified that, before he sent the letter to Universal on 8 January 2019, Mr Palmer told him that he had written the words to ANGCI by taking words used in the chorus of WNGTI and changing them. Mr Palmer did not deny that he had said this to Mr McDonald or suggest that Mr McDonald was mistaken. He merely claimed not to remember saying so.

Mr Palmer's account 110 Mr Palmer said nothing in either of his affidavits about the source of the music used in the UAP recording or his involvement in the production of the UAP recording. 111 In his first affidavit Mr Palmer gave the following account of the creation of the impugned works: 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. The party was formed because of the disenfranchisement with the major party duopoly in Australia and the views many Australians hold - that there is a lack of proper representation in government. The words perfectly supported the values of the party and members of the party agreed. 112 He acknowledged no debt to Mr Snider or WNGTI. In cross-examination he denied any such connection. 113 In his first affidavit, presumably to underscore the point he wanted to make, namely that ANGCI was an original work which he had composed (no other relevant purpose being evident), under the heading "original works" Mr Palmer waxed lyrical about his creative side. While his counsel elected not to read this passage, much of it was cross-examined into evidence. Mr Palmer professed to have "a keen interest in the publication of original poetic works". He claimed to have "regularly published poetic works", and to have been invited to share his poetic works at the Queensland Poetry Festival, works he said were "considered to be very moving and genuine" (according to his wife). 114 In a non-responsive answer to a question he was asked in cross-examination, he volunteered the following explanation for his source: I remember seeing the Peter Finch movie, where he said, "we're not gonna take it anymore", in one of those scenes. And he repeatedly stated that in a scene in the movie - "we're not gonna take it anymore, we're not gonna take it anymore", because he - I think - before he committed suicide on the TV station he was supposed to beat. This was in the movie, Network, that was produced about 1977. So from that, I developed the idea - Australians are not prepared to accept it - I thought that was a similar type thing that I worked that back, and ended up with these words. (Emphasis added) 115 This evidence appeared to take everyone else in the virtual courtroom by surprise.

The UAP videos 116 At least 12 UAP videos were made and used in the UAP's advertising campaign. The effect of Mr Wright's evidence is that the form and content of the UAP advertisements were finalised sometime between 16 November and 2 December 2018. Mr McDonald testified that one of the advertisements was "run" on YouTube in November. Having regard to the evidence above regarding the creation of the UAP videos, in all probability they were all finalised by the second half of November. The UAP videos were first broadcast on television on 2 December 2018. 117 Those videos contain the following slogans: (a) "AUSTRALIANS TO RUN AUSTRALIA / FOR AUSTRALIANS"; (b) "BANKING RIP OFFS / WE'RE NOT GONNA COP IT"; (c) "$55 Billion spent on NBN / STILL DOESN'T WORK"; (d) "Getting 80% of GST back! / WA PEOPLE ARE WORTH 100%"; (e) "LABOR & LIBERAL HAVE SPENT $55 BILLION ON THE NBN / NOTHING TO FEED YOUR ANIMALS"; (f) "NETWORK AND POWER RIP OFFS / WE'RE NOT GONNA COP IT"; (g) "NEW ZEALANDER OF THE YEAR"; (h) "NO MORE FOREIGN CONTROL OF POLITICIANS"; (i) "NO MORE WASTE OF TAXPAYERS' MONEY / STOP POLITICAL PERKS!"; (j) "SOD OFF SHORTEN'S TAXES / WE'RE NOT GOING TO COP IT"; (k) "STOP THE SALE"; and (l) "WANT STABILITY?". 118 The UAP videos have the following common features. First, the UAP recording is played throughout and it is the only audio in the videos apart from minor sound effects and the authorisation statement at the end. Second, the authorisation statement "[a]uthorised by Clive Palmer for the United Australia Party, Brisbane" appears on the screen. Third, before the authorisation statement, the videos conclude with an animated version of the UAP logo mark and the tag line: "VOTE [1] UNITED AUSTRALIA PARTY". 119 On YouTube and Facebook, each UAP video is shown on a webpage with accompanying text which often contains a message to support or join the UAP or to vote for the UAP at the forthcoming election.

The UAP's advertising campaign 120 Mr Palmer authorised the broadcast and communication of the UAP recording and videos on television, radio and online streaming. 121 According to Mr McDonald, total expenditure on the UAP advertising campaign was "something in the order of $80 million". As at 11 January 2019 prepaid expenditure on broadcast advertising was $12 million. Documents discovered by Mr Palmer indicate that the UAP videos were broadcast on television over 18,600 times, constituting some 20.6% of total broadcasts in the campaign. Mr Tonkin's unchallenged evidence, given in his first affidavit sworn on 17 April 2019, was that in total the UAP videos had been viewed on YouTube and Facebook more than 17.5 million times. 122 The UAP videos published on the internet were not geo-locked to Australia and could therefore be accessed from overseas.

Reactions to the UAP videos 123 Mr Snider became aware through social media of the UAP videos/advertisements. He first became aware of the UAP advertisements on 31 December 2018 because his Twitter followers were up in arms about them. Numerous tweets were annexed to his second affidavit, such as: • @deesnider Just interested to know: Did you and / or your recording company give permission to Australia's Clive Palmer's United Party to use the melody to "We're Not Going To Take It" with revised lyrics? Just saw Palmer's ad on Aussie tv. • It's cringeworthy. Please get it taken off the air. • @deesnider did you know that Australian political party @UnitedAusParty is using a parody of "We're Not Gonna Take It" in their political commercials? It's not a good look. • @deesnider Hey mate just wondering if you know that we're not gunna take it is being used for a right wing political party in Australia • He's the last bloke on earth you'd want to be associated with. • @deesnider Have you authorised Clive Palmer to use your song for his political party in Australia? • @deesnider Gday Dee from Australia I'm not sure if you know we have a politician (Clive Palmer) that is very much like Trump doing political advertising with your song "We're not gonna take it" I'm not sure if he and his party have permission to use it ... • @deesnider @BoyGeorge ok gents, time to fire legal teams up and put a-stop to this Clive Palmer nonsense @clivepalmerm It's destroying your music for thinking Australians!!! • Please @deesnider tell us you know nothing about @PalmerUtdParty butchering "We're Not Gonna Take It" for their horrendous political commercial. @CliveFPalmer is well known for not paying bills so odds are he didn't pay #twistedsister either 124 At around the same time, Twisted Sister's guitarist and manager, John "Jay Jay" French, told Mr Snider that the band's website and social media were being bombarded with objections to them "letting" Mr Palmer use their song. Mr Snider deposed that their Australian fans were "incensed". Five emails to Twisted Sister were annexed to Mr Snider's second affidavit, the substance of which read as follows (without alteration): • Are you aware that your tune is being used for a political campaign (TV) here in Australia? If you are, good luck to you! If not, this guy has a habit of leaving employees, contractors and suppliers out of pocket. Be warned. In either case, this does not put your band in a great light. Sorry I can not post a link to the ads, they appear to be on TV only. [A link to the UAP website was included.] • Did you really give permission to Clive Palmer's 'United Australia Party' to use your song 'We're Not Gonna Take It' (with altered words) in their election advertising or has he just helped himself to it as he seems to feel entitled to do whatever he wants? No need to reply to this email. Just wanted to make you aware. • Query from a concerned fan - is the band aware that a narrow minded, bigoted political party in Australia called the United Australia Party led by entitled rich man Clive Palmer is using their song (or a differently worded version) for their political campaign? I thought "We're not gonna take it" is about fighting the man? Clive Palmer and his party are by definition the oppressive man with their boot on the neck of those in need or who are different .... I really hope Twisted Sister do not endorse them. • Hi we got someone using one of your songs in their political advertising. He's a real piece of work that's screwed over works. If you do have an agreement I was wondering if he disclosed his bad reputation before getting this association. However if there is no agreement for the royalties of where not going to take it. I'm more than happy to tell you who to send the cease and desist to. • Hi there ... I was just writing to express some ... well 'A' concern! A complete scum of the earth politician by the name of Clive Palmer is using 'We're Not Gonna Take It' for his campaign here in Australia. Do the band know this? Either way (they do or they don't), then they should know that this politician is a complete sleeze bag who has only two interests .... 1) getting power; and 2) in getting wealthier (he is already extremely wealthy!!!) Not the kind of person TS should would want to be associated with!!! Please don't let this creep get away with this crap!!! 125 The complaints continued even after the dispute with Universal became public. 126 Mr Snider deposed that, after he became aware of the videos, he immediately watched one of the advertisements. He was "horrified" to hear the use of WNGTI "with slightly revised lyrics". He proceeded to explain why: Not only was my song being misappropriated and misrepresented, but the production of the advertisement on every level was horrendous: the poor lyrics, the poor quality vocals and the poor production values as well as the context of what appears to be a cheap advertisement for a party whose values I knew nothing about. I think the vocal style used by the singer in the advertisements is trying to emulate mine, and that the whole audio recording is a low-quality 'sound-a-like' of the original recording … 127 Media coverage of the dispute between Universal and Mr Palmer and this proceeding attracted more tweets like the ones set out above. Some of them were also annexed to Mr Snider's second affidavit. Mr Snider is concerned that, for the foreseeable future, WNGTI will primarily be associated in the minds of the Australian public with Mr Palmer's political campaign and that people who are not aware of the proceeding may think he supports Mr Palmer or allowed his music to be used in low quality advertising - or both. Mr Snider is "deeply [upset]" by the use of WNGTI without his permission and regards it as "a direct misappropriation", not merely of his song, but also of the years of labour that went into its creation. 128 Mr Snider came to learn that there were a number of advertisements with the same audio but different visuals. Since he had not approved any licence for political advertising in Australia, he immediately instructed his management to contact Universal to see whether they had granted a licence. He deposed that he "would have been very surprised and shocked" if they had because he trusted them to seek his approval first, as he believed they had always done. 129 Mr Snider had never heard of Mr Palmer or the UAP before he learned about the advertisements. Once he became aware of their "general political stance", he read media articles concerning Mr Palmer, including allegations that he had shut down his nickel mining business causing the loss of hundreds of jobs and improperly used its assets to fund his political campaign. Mr Snider said he did not know whether those allegations were true but the media coverage "taken together" suggested to him that Mr Palmer was not a person with whom he wanted to be associated and he did not want his song to be associated with him. 130 After he became aware of the UAP advertisements and, although he referred the matter to Universal "with instructions to take action", Mr Snider decided to reach out to Mr Palmer directly via Twitter and ask him to stop. Part of his purpose was to reassure fans that he had not given permission for the use of the song in the advertisements. 131 On 1 January 2019 Mr Snider tweeted: "We're Not Gonna Take It" is a song about EVERYONE'S right to free choice. "We've got the right to choose and there ain't no way we'll lose it!" The FIRST LINE of the first verse! Clive Palmer and the @PalmerUtdParty are NOT pro choice ... so THIS AIN'T HIS SONG! 132 Mr Palmer responded: We believe in everyone's right to choose and freedom of speech. Why try to stop us promoting freedom of speech & free choice? 133 This exchange provoked a number of tweets, all hostile to Mr Palmer, including the following two, which read (without alteration): • Nothing worse than when politicians bastardise songs in an attempt to be hip. Especially without artists permission. • 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. 134 On 1 January 2019 Mr French tweeted and Mr Snider retweeted: Twisted Sister does not endorse Australian politician Clive Palmer, never heard of him and was never informed of Clive Palmer's use of a re -written version of our song Were Not Gonna Take It. We receive no money from its use and we are investigating how we can stop it. 135 In the early hours of 2 January 2019 (AEDST) Mr French wrote to Mr Eaton complaining about the advertisements: I have never received so much negative email blow back on the use of a re written version of Were Not Gonna Take It by an Australian politician named Clive Palmer. He is hated and the use is on a tv commercial with changed lyrics. If the use is unauthorized then please have it stopped immediately. If Universal actually issued a license, I want to know the name of the idiot who allowed this to happen. We need to inoculate the band from this very very bad association with this known racist as Dee will be touring soon and really doesn't need all the bad press that may come of it [w]hich can affect his ticket sales, his new solo album sales and, in a much larger concern, our long term CD, video, vinyl and streaming income. I await you official comment.

Universal complains to Palmer 136 On 3 January 2019 Universal sent a letter of demand to Mr Palmer and the UAP, copied to Mr Wright, demanding, amongst other things, that the use of the UAP recording and the UAP videos cease. 137 Later that day an unidentified person in the Brisbane office of the UAP replied, advising that Mr Palmer was "currently travelling" and the letter would be raised with him as a matter of priority on his return. 138 On 5 January 2020, in response to a further tweet by Mr Snider about the dispute, a person named Kevin Morgan (with the Twitter handle @kevinmorgantas) posted the following tweet: Why did u steal the melody from the chef and velvet underground then rip off come holy faithful [sic] and the sell out to universal u got no rights no copywriter you are a fraud and Clive will expose you 139 On 8 January 2020 Mr McDonald replied to Universal's letter of demand, asserting that Universal's position was devoid of merit. Despite Mr Palmer's request to licence the copyright in WNGTI, he insisted that Universal prove ownership. He repeated the allegation in Mr Morgan's tweet that WNGTI was a "rip off" of O Come All Ye Faithful. He denied that the musical work was written by Mr Snider. He asserted that: The music was originally arranged as an a capella piece by a songsmith who was part of a ghost-writing system (working with the velvet underground which was run in the United States of America). Others may have documented the instrumentation, but the melody was already present. As Twisted Sister never remunerated the original arranger, we do not understand how they have had at any time any claim to copyright for anything. It seems your company may have been misled at the time you paid Mr. Snider money for something he never owned. We suggest you either commence proceedings against Mr. Snider or seek a refund of any money you may have paid him. 140 Mr McDonald claimed that Mr Palmer had "composed", and owned copyright in, the lyrics used in the UAP recording and videos. He also claimed that the UAP's use was "fair use under the Copyright Act" apparently because the music used in the commercials "runs for approximately 11 seconds and is used to criticize [sic]". 141 I interpolate that this is the first time Mr Palmer or any of his agents had made such allegations to Universal and the evidence indicates that no such allegations had previously been made in any of Mr Palmer's social media posts. 142 In anticipation of an application by Universal for an interlocutory injunction, Mr McDonald threatened to seek $10 million by way of security from Universal, which he estimated would be the value of damages on the usual undertaking required as a condition of the grant of such an injunction. He asserted that Mr Snider had "threatened violence" against Mr Palmer, based solely on a tweet in which Mr Snider said that he would "deal" with the dispute himself. On that basis, Mr McDonald foreshadowed that "they", presumably the UAP, would write to the relevant Minister objecting to the grant of a visa to Mr Snider, who was due to embark on an Australian tour. 143 In cross-examination Mr McDonald testified that the letter was based on what Mr Palmer had told him and that Mr Palmer had "signed off" on its contents, in other words that Mr Palmer had reviewed the letter in draft and approved it before it was sent. Mr McDonald also testified that Mr Palmer had directed him to use the word "composed" but that before he sent the letter Mr Palmer had told him that he had "written" the lyrics in the UAP recording by taking the words of WNGTI and changing them. He conceded that it was misleading to say that Mr Palmer "composed" the lyrics. 144 The same day, 8 January 2020, the UAP issued the following media release, which was published on its Facebook page: United Australia Party exposes Twisted Sister and says: "We're Not Gonna Cop It" The United Australia Party is not going to cop Twisted Sister's threatening tactics, calling the American heavy metal band out for swindling its hit song from a famous Christmas carol. Federal leader Clive Palmer said today 'We're Not Gonna Take It was not an original work by Twisted Sister's Dee Snider, rather a rip-off of the centuries-old 'O Come, All Ye Faithful'. "The song 'We're Not Gonna Take It' as an alleged musical work was not written by Dee Snider. The music was originally arranged as a cappella piece from the hymn 'O Come All Ye Faithful' first composed in the mid 1700s", Mr Palmer said. "Others may have documented the instrumentation, but the melody was already present. "As Twisted Sister never remunerated the original arranger, we do not understand how they have ever had any claim to its copyright. "It seems Universal Music Group may have been misled at the time of paying the group's front man Dee Snider money for something he never owned", Mr Palmer said. "Maybe Universal should consider commencement of proceedings against Dee Snider or seek a refund of any money they have paid to him," he said. Mr Palmer said the lyrics used by the United Australia Party in the advertisements were composed by him and he owned the copyright. He said the performance rights of the artist rested with the United Australian [sic] Party. "We are concerned about defamation and threats made by Dee Snider and as such believe the minister for Home Affairs Minister Peter Dutton should reject his visa, given the current crackdown," Mr Palmer said. 145 Mr McDonald testified that the media release would have been sent either by Mr Palmer or the UAP's media adviser but that Mr Palmer customarily signed off on media releases. Consistently with the evidence he had given earlier, Mr McDonald conceded that the statement attributed to Mr Palmer in the media release that he had "composed" the lyrics used by the UAP was misleading since he had told him, in effect, that he had adapted them from the lyrics to the chorus of WNGTI. 146 The same day the UAP also posted the following tweets: • Federal leader Clive Palmer said today "We're Not Gonna Take It" was not an original work by Twisted Sister's Dee Snider, rather a rip-off of the centuries-old 'O Come, All Ye Faithful'. • United Australia Party exposes Twisted Sister and says: "We're Not Gonna Cop It" The United Australia Party is not going to cop Twisted Sister's threatening tactics, calling the American heavy metal band out for swindling its hit song from a famous Christmas carol. 147 Unsurprisingly, Mr Snider did not react well to this. He was shocked by Mr Palmer's response. 148 Later that day Ms Don referred the matter to Universal's solicitors, Simpsons, and on 9 January 2019 Simpsons responded in detail to Mr McDonald's letter, amongst other things demanding that each of Mr Palmer, the UAP, Mr Wright and The Creative Division Pty Ltd cease and desist the reproduction, distribution, publication, communication, adaption or use of WNGTI and ANGCI, and foreshadowing legal action, including injunctive relief, if he did not. 149 On 11 January 2019 Mr McDonald replied to Simpsons again disputing Universal's copyright and seeking an undertaking as to damages in the event that an injunction was sought. On the latter subject he requested a copy of the form of the injunction and asserted that: The United Australia Party would suffer damages of over $12,000,000 if a Court granted your clients the foreshadowed injunction. Our Party has already prepaid over $12,000,000 for the future broadcast of its advertising programme. 150 He asked that further correspondence be directed to Mr Iskander of Alexander Law. It appears from Mr Palmers List of Documents filed in response to the discovery orders made by the Court on 27 July 2020 that Mr Palmer first received legal advice in writing on 10 January 2019. 151 Between 17 and 21 January 2019 Simpsons corresponded with Mr Iskander. In the course of that correspondence, Mr Iskander indicated that his firm had been instructed to sue Mr Snider for defamation. 152 On 30 January 2019 the UAP issued another media release entitled "Palmer wishes aging rocker a comfortable retirement". It reads: Clive Palmer has responded to the latest round of insults from Twisted Sister's front man Dee Snider by wishing the aging rocker all the best in his retirement. "As an aging rocker with an affinity for wigs, he is obviously still trying to gain notoriety so people will come to his concerts. "He should be careful about pointing the finger at people because the song he is apparently so protective of was not an original work of his, rather a rip-off of the centuries-old Christmas carol 'O Come, All Ye Faithful'. "If Mr Snider thinks he has a case, then there is a court system to deal with such matters. I believe his legal advice has stated there is no merit in it, and he should not be misleading the Australian public," Mr Palmer said. Mr Palmer said he wishes the 80s hair metal star no malice. "As a senior citizen of the USA, I hope his tour earns him enough money for a comfortable retirement. "Australians aren't going to cop it ……. anymore," he said. 153 Mr Snider deposed that he is insulted by Mr Palmer's continued attacks on him and his work and the continued use of "[his] song".

The proceeding begins 154 Universal commenced the proceeding in this Court on 6 February 2019. 155 Ten days later, on 16 February 2019, an article appeared in the Townsville Bulletin reporting on statements made by Mr Palmer at a press conference in Townsville. The article began with the following statement: CLIVE Palmer says he is going to continue using the melody to US metal band's hit We're Not Gonna Take It in his political advertising because no one owns the copyright and the song is resonating with people across Australia who are fed up with politicians. 156 The journalist also quoted Mr Palmer as saying, amongst other things: The message we are giving on the political level - we're not going to take it - we will continue to give because we think it resonates with a lot of Australians across Australia. (Emphasis added) 157 On 19 February 2019 Mr Wright sent an email to Mr Palmer containing a hyperlink to another UAP video. The subject line once again included the initialism "WNGTI". 158 On 20 March 2019 Mr Palmer filed his original defence in which he denied that the musical work was an original musical work; denied infringement of the literary work on the ground that the UAP recording and videos used "original lyrics"; and asserted for the first time that the use of WNGTI in the UAP recording and videos was a fair dealing for the purpose of parody or satire. 159 On 12 April 2019 Mr Palmer was interviewed on the radio program "Fitzy & Wippa". One of the hosts asked him whether he had "heard from Twisted Sister about using their song". He replied by repeating the allegation that Twisted Sister "stole" the tune of O Come All Ye Faithful, which he called O Come Holy Faithful, incorporating the mondegreen "Holy" for "All Ye" - the same one used in Kevin Morgan's tweet. He also accused Mr Snider of being "a fraud". 160 During the interview Mr Palmer sang what counsel for Universal called "a recognisable rendition of the chorus of WNGTI" with the following lyrics (emphasis added): Australia ain't gonna take it; Australia's not gonna cop it; Aussies not gonna cop it Anymore. 161 I note parenthetically that Universal submitted that the use of "take" in lieu of "cop" in the first line was indicative of the fact that Mr Palmer viewed the words as interchangeable. There is, of course, another possible explanation. 162 The federal election took place on 18 May 2019 after which the use of the UAP recording and videos ceased. 163 The hearing began on 19 October 2020. 164 On 21 October 2020, the day after Mr Snider gave evidence, a video was published on the news.com.au website featuring an interview with Mr Palmer about the case. During the course of the interview Mr Palmer boasted that he would defeat Twisted Sister. In court today, what's his name, er, Dee Snider, said that he never wrote the melody, he copied it from "O Come Holy Faithful". And if you remember The Who, that "We're Not Gonna Take It" in Tommy, that's where the words come from. They don't come from Dee Snider, they don't come from there. They're totally not owned by them, there's no copyright on them at all. And that was admitted in court today. He said that he copied it from "O Come Holy Faithful". If you go on YouTube, if you look up "O Come Holy Faithful", there's Twisted Sister, singing "O Come Holy Faithful" to that tune… 165 Mr Snider said nothing of the kind in court. The reference to Twisted Sister singing "O Come Holy Faithful" is obviously a reference to the band's rendition of O Come All Ye Faithful, which was first recorded decades after WNGTI was released. 166 A Cameo video is a short personalised video message, made popular by the Cameo website which allows celebrities to send personalised videos to fans, usually for a fee. Mr Snider has delivered hundreds of them directed to fans and others often providing encouragement or inspiration to the person for whom it is intended. Snider is paid for many of them but has been making them for free for frontline workers and fans battling COVID-19. Mr Snider deposed that it is common for people to ask for videos to be made for their friends and in about December 2019 he received a request from "Declan" containing the following instructions (without alteration): My buddy Cliv is a big fan. He is working hard at work and if you could give him a pep talk and good luck that would go a long way. Thank you! 167 In response to the request, Mr Snider uploaded a video to the Cameo website in which he stated: Oh yeah yeah yeah yeah yeah yeah, Cliv! It's me D Snider from Twisted Sister. Yeah you know me and your buddy Declan tells me that you are working hard, kicking ass, fighting the damn good fight, and let me tell you my friend, I know that it is a struggle every fricken day. I've got tattoos two places on my body that say the exact same thing in each place. Why? Because it's that fricken important. It's Latin. Illegitimus non carborundum est. It means never let the bastards wear you down. Never! And if you know anything about me I know you're a metal fan, I know you're a D Snider fan, I know you love to rock! If you know anything about me, I have struggled my whole fricken life and fought my whole life. Yes I have had success, but it has not been without massive fricken failure. Yet I have fought back. I never let the bastards wear me down. Dude, Cliv, don't you ever let them wear you down either. Keep fighting. Keep working. Keep hanging in there. Perseverance fucking pays off brother! Perseverance pays off. Never stop rocking. 168 The evening after Mr Palmer was discharged from giving evidence, this video was posted to Mr Palmer's social media accounts: Twitter, Facebook and Instagram. Mr Snider was appalled by the unauthorised use of the video. He expressed the view that Mr Palmer's use of the video falsely suggests that he supports Mr Palmer's defence, contrary to his sworn evidence.

The question of infringement 169 While neither authorship nor ownership of the copyright in WNGTI is an issue in the proceeding, Mr Palmer continues to resist Universal's claim that he infringed its copyright by claiming that he did not copy the chorus of WNGTI and that, in any event, the copied part was not an original work because its melody was the same as the opening bars of O Come All Ye Faithful.

How is the question to be determined? 170 Determining whether a work has been infringed requires a comparison to be made of the respective works. The comparison involves three steps: first, identifying the works in suit in which the copyright subsists; second, identifying in the allegedly infringing work the part which is alleged to have been taken, derived or copied from the copyright work; and third, deciding whether that which is taken is a substantial part of the copyright work: Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd (2008) 172 FCR 580 at [41] (Lindgren, Goldberg and Bennett JJ).

Step 1: What are the works in suit? 171 The works in suit are the song WNGTI (the musical work) and the lyrics of the WNGTI song (the literary work) as embodied in the sound recording of WNGTI tendered in evidence (Ex SDT-1), being the Twisted Sister recording released in 1984. 172 Universal submitted that the musical work comprises all the instrumentation, including the lyrics as sung, but not Mr Snider's "particular performance". Mr Palmer did not argue otherwise. Universal's submission was supported by the judgment of Perram J in Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535; 383 ALR 202; 155 IPR 196 (Perram J) at [65]-[77] and [205], and judicial comity requires me to follow it. Boomerang involved the infringement of copyright in the Vanda and Young hit, Love is in the Air, sung and popularised by John Paul Young. In that case there was a dispute about whether the lyrics, when sung, could be taken into account as part of the musical work (see [65]). His Honour held that, not only could they be taken into account, but that that "the sound of those words being sung is part of the musical work" (at [66]). Though interesting, there is no need in the circumstances to reproduce the reasoning. It is sufficient to refer to his Honour's concluding remarks on the point at [205]: I consider that sung lyrics, as music, are an essential part of the musical work. It is therefore unsound to ask whether the musical work in the portion of Love is original in this sense divorced from the fact that the musical instrument playing that melody is a human voice making the sound 'lʌv ɪz ɪn ði eə'. (Emphasis added.) 173 Dr Ford's first report contains a detailed analysis of the musical work which I did not understand to be contentious: Music 22. The chorus of WNGTI lasts for eight bars. There is a chord change each bar, following the following chord progression: I - V - I - IV - I - V - I - V 23. Unsurprisingly, the focus of the chorus is on the vocal melody. I observe that: (a) The melodic phrases to which the first three lines of lyrics are sung are each quite different. (b) The singer heavily emphasises the first consonant of each of the first three lines, in each case starting slightly before the beginning of the bar. The effect is an audible rhythmic anticipation which sounds almost like lines one and three begin "A-we're" and line two begins "Er-no" (as reflected in the transcription at paragraph 37 below). (c) The second phrase - "No, we ain't gonna take it" - is the high point of the melody: literally, in that the word "take" in this phrase includes the melody's highest pitch, and figuratively, in that this word and pitch land on the subdominant (chord IV) creating the tune's main moment of harmonic tension. The first phrase sets this up, the third phrase resolves it. (d) In each phrase, the words "take it" are rhythmically syncopated (that is, sung on the offbeat). (e) The words "any more" are sung to a single note, with the last syllable extended. (f) Although I have been requested to consider the music of the chorus, it is worth pointing out that this differs only slightly from the music of the verse. The chord structure of the verses and choruses are identical, and there are melodic connections. The melodic content of the guitar solo from 2:09 draws equally on verse and chorus. 24. Except on the two occasions identified above when it is sung over drums alone, the chorus is backed by the entire band (guitars, bass and drums). I observe that: (a) The guitars appear to be playing power chords (that is, a chord comprising just the root note and the fifth above), typical for the hard rock or heavy metal genres. (b) The electric bass has a double function as bass and as part of the rhythm section. Its more-or-less constant quavers drive the song as much as the drums. (c) The drum kit is playing a fairly standard rock pattern, with emphasis on the second and fourth beats of each bar - the "back beat" - and a distinct cymbal hit on each beat.

Step 2: What was taken, derived or copied from the works in suit? 174 It will be recalled that the second step in determining the question of infringement is to identify in the impugned work the part or parts taken, derived or copied from the work in suit. 175 For the purposes of copyright law, reproduction involves two elements: first, "resemblance to, and actual use, of the copyright work" and "some causal connection" between the works: SW Hart & Co at 472 (Gibbs CJ). Put another way, there must be a sufficient degree of objective similarity between the copyright work and the impugned work for the latter to be a reproduction or adaptation of the former and the copyright work must be the source from which the infringing work is derived, either directly or indirectly: Bron at 614 (Wilmer LJ), 623 (Diplock LJ); Lindgren K, Rothnie WA & Lahore J, Lahore Copyright and Designs (Lexis Nexis Butterworths, subscription service) at [34,167A] (update 158). 176 In the present case neither the objective similarity of the works nor the causal connection between them was identified as an issue in the parties' statement of agreed facts and issues. On the other hand neither was formally admitted. Mr Palmer made no submissions on the objective similarity between the chorus of WNGTI and ANGCI. Mr Palmer's evidence was to the effect that there was no causal connection. 177 On both these questions I find in Universal's favour.

Objective similarity 178 I will deal first with the musical works. 179 The question of objective similarity of musical works is "'not to be determined by a note for note comparison but is to be determined by the eye as well as by the ear' and depends to a 'large degree upon the aural perception of the judge and upon the expert evidence'": EMI v Larrikin at [121(5)] (Jagot J, Nicholas J agreeing at [254]); see also [87] (Emmett J); Boomerang at [97] (Perram J). The structure, notes, melody, harmony and other features of the song are all relevant: EMI v Larrikin at [50] (Emmett J), [121(11)] (Jagot J). 180 The Court is required to place itself in the position of an ordinary reasonably experienced listener: EMI v Larrikin at [209]-[210] (Jagot J, with whom Nicholas J agreed at [254]). 181 Universal submitted that an ordinary, reasonably experienced listener would hear, without difficulty, that the UAP recording (incorporated in the UAP videos), contains music and lyrics that are very similar to the music and lyrics of WNGTI. I accept that submission. The works are strikingly similar. That was my immediate reaction when I heard them. It was also the reaction of many other listeners as evidenced by the tweets and emails to which I referred above. And on this question the experts were in furious agreement. 182 In their joint report Dr Ford and Dr Davidson stated that the UAP recording, incorporated in the UAP videos, is "virtually identical" to the musical work and "almost entirely based on it". In their individual reports they each pointed to similarities in the melodic line (in both pitch and rhythm), harmony, key, tempo, instrumentation and lyric content. Although at one point in cross-examination Dr Davidson appeared to retreat from the agreed position that his view was that the UAP recording is virtually identical to the Twisted Sister recording. 183 As Dr Ford put it in his first report, "[p]erhaps the most striking and obvious aspect of the UAP Recording is its very close resemblance to the chorus of WNGTI (and in particular the "full band" iterations, the first of which appears at around 0.50 of the Twisted Sister recording)". 184 Dr Ford said that the musical similarity between the UAP recording and the chorus of WNGTI is immediately obvious on listening to them. I agree. As Dr Ford went on to explain, like the chorus of WNGTI, the UAP recording is in the key of E major, has a time signature of 4/4, is played at a tempo of around 150 bpm, and it lasts for seven bars, reflecting the first seven bars of the chorus of WNGTI. Moreover, it uses the same chord progression for those bars: I - V - I - IV - I - V - I. None of this evidence was controversial. 185 Dr Ford said that the vocal melody of the UAP recording closely matches the melodic contour (the shape of the rise and fall of the pitch or tones) of the vocal melody of the WNGTI chorus. In other words, as Dr Ford explained, the same notes are present in each phrase in the same order such that they sound very similar. Dr Davidson said it was the same. While there are some rhythmic changes in the first three phrases of the UAP recording to accommodate the extra syllables in the altered lyrics, it makes little difference to the overall similarities of the sound and impression. In each of those phrases "cop it" is sung to the same notes and syncopated rhythm as "take it" in WNGTI. Finally, the last phrase ("any more") is identical. 186 Dr Ford said that the lyrics are essentially the same. Dr Davidson said they are very similar. 187 Dr Ford said that the timbre or tone colour of the vocal line of the chorus of WNGTI and the UAP recording are "extremely similar", using "vocals with a rough and raucous quality, the singing seeming half way to a shout". 188 Dr Ford said that the backing instrumentation in the UAP recording sounds "very similar" to that used in the WNGTI chorus in its "full band" iterations and described it as "essentially the same music". The instrumentation is further back in the mix in the UAP recording so that it seems quieter. The guitar part in the UAP recording is "the same three chords…as in the WNGTI chorus played essentially in the same way". The drums are "[played] in essentially the same pattern… including a cymbal hit on each beat". Although there are some minor differences in the bass line, they are hard to discern and do not detract in any real way from the overall impression made on the listener. 189 Dr Davidson said that "[t]he texture of distorted electric rhythm guitar with active bass guitar (though with different bass lines) and a straightforward backbeat drum kit loop accompanying several male voices in unison is very similar in both the UAP Recording and the chorus of [WNGTI]". 190 Dr Davidson also pointed out that the structure of the UAP recording is very similar to the chorus of WNGTI and the phrase structure of both works is the same. 191 The question of whether the musical work and the impugned work are objectively similar should therefore be answered in the affirmative. The latter takes the chorus of the former, particularly its melody (including the sound of the sung lyrics), harmony, key, tempo, and instrumentation. 192 The same answer must be given to the question of whether the literary works are objectively similar. The reproduction need not be exact. Similarity, not identity, is required. In Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416, which involved an action for infringement of artistic copyright Lord Millett observed at 2425D that "[t]he reproduction may be exact or it may introduce deliberate variations - involving altered copying or colourable imitation as it is sometimes called". 193 Mention has already been made of the similarity of the lyrics. As Dr Ford observed, they are "essentially the same". The only differences are that the generic "we" in WNGTI is replaced by "Australia" or "Aussies" in ANGCI; the verb "take" is replaced by the vernacular "cop", and in the first and second lines of the works the positions of "ain't" and "not" are switched. To an Australian audience "we" is synonymous with "Australia" or "Aussies" and "take" with "cop". They say the same things and convey the same message or idea.

Causation 194 The question of causation is a subjective question but "the degree of similarity is the most important in reaching this subjective conclusion": Bron at 618 (Upjohn LJ). 195 Although Mr Palmer's credit was seriously challenged, on the causal link between WNGTI and the UAP recording all that was said on his behalf was that "Mr Palmer's evidence is to the effect that there was no causal connection" and that "the court would carefully consider making any finding rejecting that evidence", citing Channel Seven Sydney Pty Ltd v Mahomed [2010] NSWCA 335; 278 ALR 232 at [5] in which Beazley JA, with whom Spigelman CJ agreed, said: Findings in a civil case, both of intermediate facts, including credit findings, and of ultimate facts, are made on the civil standard. Even within the civil standard, the degree of satisfaction that a court must have before reaching a conclusion varies, depending on the seriousness of the matter in issue. 196 The civil standard (of proof), of course, is the balance of probabilities. Mr Palmer's submission referred to "the Briginshaw standard" (after Briginshaw v Briginshaw (1938) 60 CLR 336). Lawyers frequently speak in these terms but there is no such thing, as has been emphasised in numerous cases, including Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; see also G v H (1994) 181 CLR 387 at 399 (Deane, Dawson and Gaudron JJ); and Gianoutsos v Glykis (2006) 65 NSWLR 539 at [47]-[51] (McClellan CJ at CL), Sully J and Hislop J agreeing at [65] and [66] respectively. There is only the civil standard and the criminal standard. That said, the point made in Mahomed is the same point that was made by Dixon J in Briginshaw at 362, namely that "[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether [an] issue has been proved to the reasonable satisfaction of the tribunal". In Briginshaw his Honour went on to point out that in such matters reasonable satisfaction should not be produced by "inexact proofs, indefinite testimony, or indirect inferences". This principle is incorporated in s 140 of the Evidence Act 1995 (Cth). This is not a case in which criminal conduct or fraud is involved but Universal's case is that Mr Palmer has been dishonest. A finding to that effect should not lightly be made. 197 Nevertheless, the evidence on causation is overwhelmingly in Universal's favour. I have no doubt that both the lyrics and the music were taken from the chorus of WNGTI and I so find. Mr Palmer denied any causal connection. But I do not accept his denials. They defy common sense, fly in the face of the contemporaneous documents, and were contradicted by the evidence his own witnesses. 198 I turn first to the musical work. 199 The question here is whether the UAP recording was a copy or imitation of the chorus of WNGTI rather than an independent work. As I mentioned earlier, there is no infringement of copyright in a work which is independently produced even if it is similar or identical to the copyright work: McCrum v Eisner (1917) 87 LJ Ch 99 at 102 (Peterson J). 200 Having regard to the similarities in the works, the history of the creation of the UAP recording and videos as disclosed by Mr Wright's emails, the procedures followed by the session musicians, Mr Palmer's endorsements revealed by the contemporaneous documents, and the evidence of Mr Wright and Mr McDonald, I am well satisfied that the requisite causal connection has been made out. 201 Indeed, the similarities in the works alone would have been sufficient to enable an inference to be comfortably drawn that the UAP recording was a copy or imitation of the chorus of WNGTI as embodied in the 1984 Twisted Sister recording. 202 The experts agreed that WNGTI is the model for the UAP recording. It will be recalled that in their joint report they wrote that the UAP recording is "virtually identical to the chorus of WNGTI and almost entirely based on it". 203 The conclusions reached by Dr Ford are inescapable: The only notable differences between the UAP Recording and the chorus of WNGTI are the lyrical changes identified above, and rhythmic changes to the vocal melody to fit in the extra syllables of those modified lyrics. To the extent that there are other differences (for instance in the backing instrumentation) they are minor and do not significantly detract from the overall aural similarity. Taken together, the musical and lyrical similarities described above are consistent with a deliberate attempt to reproduce the chorus of WNGTI as performed by Twisted Sister. They are, in my view, too close and numerous to be coincidental. This conclusion is reinforced by other aspects of the UAP Recording (for instance, the guitar tone, singing style and overall feel) which sound to me very similar to Twisted Sister's recording of WNGTI. 204 I therefore find that the copyright work was the source from which the UAP recording was derived. In the face of the evidence it is, with respect, ludicrous to suggest that the UAP recording was created independently of WNGTI. The notion that there is no causal connection between the UAP recording and WNGTI is fanciful. 205 I now turn to the literary works. 206 It will be recalled that in his first affidavit Mr Palmer deposed that the words for ANGCI came to him in a moment of "deep contemplation" while sitting at home preparing for the upcoming Federal election and that in cross-examination he volunteered that the source of, or inspiration for, ANGCI was a line from the film, Network, which he misremembered as "we're not gonna take it anymore". 207 There were numerous problems with this evidence. 208 First, the proposition that the source of, or inspiration for, ANGCI was the film, Network, emerged for the first time in cross-examination and smacks of recent invention. If it were true, one would have expected to see a reference to it in at least one of Mr Palmer's two affidavits, if not also in his social media posts. 209 Second, it is inconsistent with the amended defence which contains an admission that the lyrics of ANGCI were taken or derived from the words of the chorus of WNGTI. In paragraph 15 Mr Palmer's denial of the allegation in the statement of claim that the UAP recording and videos incorporate and reproduce in material form a substantial part of the literary work was supported by the following particulars: (a) the extent of use of the Literary Work the UAP Recording and the UAP Videos being limited to some of the words of the chorus of the Literary Work; (b) the words of the chorus of the Literary Work being altered to a not insignificant degree from "We're not going to take it No, We ain't gonna take it We're not going to take it, anymore" to "Australia ain't going to cop it No Australia's not gonna cop it Aussie's not gonna cop it, anymore"; and (c) the words of the chorus of the Literary Work having very limited originality, in that the words are entirely based on three commonly used phrases, "We're not going to take it", "No. we ain't going to take it", and "We're not going to take it anymore", the UAP Recording and the UAP Videos do not incorporate or reproduce a substantial part of the Literary Work copyrighted. (Emphasis added.) 210 Leave was never sought to withdraw the admission. 211 Third, in Network Peter Finch's character, Howard Beale, did not repeatedly say "[w]e're not gonna take it anymore; we're not gonna take it anymore". Rather, he said: "I'm mad as hell and I'm not going to take this anymore". This is the relevant speech: I want you to get up right now, sit up, go to your windows, open them and stick your head out and yell: "I'm as mad as hell and I'm not going to take this anymore!" 212 Fourth, Mr Palmer's account of the genesis of ANGCI is not supported by the contemporaneous documents and is inconsistent with Mr Wright's testimony that Mr Palmer suggested variations to WNGTI which he conveyed to the session musicians and Mr McDonald's evidence that Mr Palmer told him he had written it by adapting WNGTI. Although he was called to give evidence after both Mr McDonald and Mr Wright, no request was made to adduce additional evidence in chief from Mr Palmer to reconcile the apparent inconsistencies in the accounts, presumably because they were irreconcilable. 213 Fifth, as I mentioned earlier the lyrics to the chorus of WNGTI and ANGCI are in substance the same. 214 Sixth, the evidence concerning the development of the UAP recording strongly suggests that Mr Palmer wanted to use the chorus of WNGTI for the UAP campaign and only came up with the changes to the lyrics to try and avoid a copyright infringement suit. It is reasonable to infer that the preference for "anymore" over "at all" was to retain and emphasise the connection to WNGTI. As Universal submitted and Mr Wright had indicated to Universal was Mr Palmer's intention, ANGCI was a cover version of WNGTI. 215 There are other reasons for querying Mr Palmer's credibility. 216 For example, in cross-examination Mr Palmer was taken to an email from Mr Wright of 23 October 2018 which contained hyperlinks to early drafts of the UAP advertisements with file names which included "WNGTI" and which referred to "WNGTI". Mr Palmer claimed he had no idea what the initials stood for. At first he suggested it may have been "a code word or something". He denied that it was obvious it stood for "We're Not Gonna Take It" and said that he thought it was referring to a new advertisement for Coolum and Townsville. The basis for this notion was never disclosed. Only after one of the videos was played in open court was he prepared to concede that they stood for We're Not Gonna Take It. The explanation he offered for his professed ignorance was: "I don't have those initials in my mind from time to time. It's not relevant in my world". I regard this evidence as disingenuous. 217 Universal's submissions eloquently explained why Mr Palmer's evidence that he came up with the words to ANGCI independently of WNGTI must be rejected. 218 First, to accept Mr Palmer's account involves accepting the bizarre coincidence that, immediately after he had independently "composed" ANGCI, he authorised Mr Wright to enter into negotiations with Universal for a licence to use WGNTI, which coincidentally had strikingly similar lyrics. 219 Second, to accept Mr Palmer's account involves accepting a number of matters which considered on their own are implausible and when considered together are not only contrary to the objective evidence, but are preposterous. The sequence of events goes like this: (1) Mr Palmer was inspired by the words used by Peter Finch's character in Network although the words to ANGCI are different. (2) Mr Palmer thought of the idea that "Australians are not prepared to accept it" which became "Australians are not going to cop it" and later "Aussies ain't gonna cop it", a progression which is not self-evident and sounds unlikely. (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. (7) Although the lyrics were the product of his own imagination and were derived in September 2018 independently of WNGTI, on or before 11 October 2018 Mr Palmer instructed Mr Wright to seek a licence to use WNGTI, the lyrics of which are much closer to ANGCI than the words used in Network (even the correct Peter Finch movie line is but one line; both ANGCI and WNGTI are triplets or perhaps quadruplets, depending on whether "anymore" is given its own line). (8) In the period from 23 until 27 October 2018, while licence negotiations with Universal were still on foot, Mr Wright made videos for the advertisements in which the original Twisted Sister recording was synchronised to the advertisements, which he emailed to Mr Palmer using the initialism "WNGTI" in the subject line although Mr Palmer did not know what the initials stood for. (9) Mr Wright continued to negotiate with Universal on Mr Palmer's behalf although Mr Palmer had come up with the lyrics to ANGCI independently of WNGTI. (10) After the negotiations with Universal broke down, sometime between 30 October and 13 November 2018 the session musicians prepared a number of takes of WNGTI using variations of the lyrics, one of which just happens to be exactly the same as that which came to Mr Palmer in the early hours of the morning in September 2018. (11) By sheer coincidence Mr Palmer settled on the lyrics of ANGCI independently of WNGTI. (12) Mr McDonald's evidence that Mr Palmer told him he had created ANGCI by changing the lyrics to WNGTI was necessarily false or mistaken. (13) Mr Wright's evidence about what Mr Palmer conveyed to the session musicians through him was also false or mistaken. (14) In all the pre-action correspondence between the parties, his pleadings, the many public statements he made in relation to the dispute, and his affidavits, Mr Palmer somehow forgot to mention that Network had been his inspiration. 220 Third, it is inherently more likely that the lyrics of ANGCI were taken or derived from WNGTI, with Mr Palmer copying those lyrics, altering some of the words, and instructing the musicians to perform various takes of the chorus of WNGTI, one of which included the words upon which he eventually settled. This evidence is consistent with both the contemporaneous evidence and the testimony of Mr McDonald and Mr Wright. There is no reasonable prospect that Mr Palmer's evidence was the result of an honest mistake. 221 I conclude that Mr Palmer's account was a recent invention. I am persuaded that this is a case of "deliberate variations - involving altered copying or colourable imitation". As Universal submitted, the contemporaneous documents and recordings and the oral evidence given by Mr McDonald and Mr Wright disclose the real story, namely that the words of ANGCI were "created by Mr Palmer changing the words from WNGTI as part of a 'series of takes' or variations on [WNGTI] conveyed by Mr Palmer to Mr Wright, and then passed on to the session musicians". 222 It follows that I am comfortably satisfied that the impugned works were taken or derived from the copyright works. The evolution of the UAP recording, as evidenced by the contemporaneous documents in particular, indicates that more likely than not Mr Palmer - perhaps inspired by the use of the song in the first Trump presidential campaign - decided that the chorus of WNGTI would make an ideal song for his own campaign and that the music and lyrics used in the UAP recording and videos were taken or derived from WNGTI.

Step 3: Do the impugned works reproduce a substantial part of the copyright works?

The legal principles 223 The legal principles are well established. 224 First, whether a part is substantial is determined by reference to the quality, rather than the quantity, of the reproduced part: Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 at 293; [1964] 1 All ER 465 at 481 (Lord Pearce); Autodesk, Inc. v Dynason (No 2) (1993) 176 CLR 300 at 305 (Mason CJ) as approved in Data Access Corporation v Powerflex Services Pty Ltd (1999) 202 CLR 1 at [83]-[87] (Gleeson CJ, McHugh, Gummow and Hayne JJ). That does not mean that quantity is irrelevant. What it means is that a part that is small in quantity may nonetheless be substantial because of its significance or importance to the copyright work. Thus, it may be enough that the reproduced part is a vital, essential or material part of the copyright work, although it is small in quantity: Dixon Investments Pty Ltd v Hall [1990] FCA 477 at [25]; 18 IPR 490 at 494 (Lockhart, Spender and Ryan JJ); Autodesk at 305 (Mason CJ). Both quantity and quality are relevant: TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2001) 108 FCR 235 at [45], [67] (Conti J) (Nine v Ten (2001)); TCN Channel Nine Pty Ltd v Network Ten Ltd (2002) 118 FCR 417 at [90] (Hely J) (Nine v Ten (2002)), an approach affirmed by the High Court in Network Ten Pty Limited v TCN Channel Nine Pty Limited (2004) 218 CLR 273 at [47] (McHugh ACJ, Gummow and Hayne JJ). 225 Second, "[t]he reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright work and therefore will not be protected": Ladbroke at 293 cited with approval in Autodesk at 305. Thus, the simpler the copyright work or the more it lacks substantial originality, the greater the degree of taking required: Davies D, Caddick N and Harbottle G (ed.), Copinger and Skone James on Copyright (17th ed, Sweet & Maxwell, 2016) at 562 [7-54]; IceTV at [40] (French CJ, Crennan and Kiefel JJ). 226 Third, originality for the purposes of copyright law, does not mean originality of thought or ideas but originality in the execution of the particular form in which thoughts or ideas are expressed: Lahore at [10,015]. As the learned authors explain, lack of originality of thought does not negate subsistence of copyright in its expression, as long as there is some originality in the latter. 227 Fourth, originality does not mean novelty or uniqueness: Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 379 (Gummow J with whom Black CJ and Lockhart J agreed at 349); IceTV at [33]. Novelty is not required. In this respect copyright is quite different from patent and design law. "Originality" means that the work was produced by the application of "some independent intellectual effort": IceTV at [33]. 228 There is no rule that a work which is based on another cannot for that reason alone attract copyright: Interlego at 379 (Gummow J). While Interlego was relevantly concerned with the existence of copyright in artistic works, specifically design drawings, there is no reason to suppose that his Honour's observation does not apply equally to musical and literary works. 229 Reflecting on the position taken by the courts in the United Kingdom, the learned authors of Copinger state that there are two elements to originality: First, the work should have originated from the author in the sense that it was not slavishly copied from some other work and second, the author should have expended more than negligible or trivial labour, skill and judgment in the creation of the work. 230 IceTV does not suggest that the position in Australia is any different. In Henley Arch Pty Ltd v Lucky Homes Pty Ltd [2016] FCA 1217; 120 IPR 317 at [146] Beach J similarly observed that, for copyright to subsist in a work, there need only be "a minimal degree of creativity". 231 Fifth, the determination of substantial reproduction of a musical work is not made by "a note-by-note textual comparison of the scores". Rather, it involves listening to, and comparing, the sounds of the copyright work with the sounds of the infringing work: Sawkins at [54] (Mummery LJ). All the elements that contribute to the sound of the music when performed are to be taken into account provided they are the product of a person's effort skill and time, although the amount of effort, skill and time expended in its creation may be "relatively modest": Sawkins at [56].

Was the copied part a substantial part of the musical work? 232 In the present case, subject to the question of originality, there was no dispute that the part I have found to be copied (the chorus of WNGTI) was an essential or material part of the musical work. 233 The experts agreed that the chorus of WNGTI is the most prominent feature of both the musical work and the literary work. As Dr Davidson put it in his report, the chorus of WNGTI "is very much the signature part of the song" and that is what is reproduced in the UAP recording. 234 In his first report Dr Ford made the following points: 25. In the context of popular music of the last 70 years or so, the chorus is usually - and almost by definition - the most memorable structural element of a given song. It is usually repeated more often than any other part of the song, and generally speaking will be the "catchiest" part. This is partly because the words of the chorus tend to remain the same, while the words of the verse progress throughout the song. 26. This is certainly the case for WNGTI. The chorus is by far [the] most important part of the song, both quantitatively and qualitatively. 27. Quantitatively, the chorus appears eight times - played six times by the full band and twice sung over drums alone. As pointed out at paragraph 23(f) above, the verses have the same structure as the chorus as well as some melodic similarity, and the guitar solo (again using that same chord sequence) reproduces parts of the chorus's vocal melody. It is only the song's brief "bridge" that departs from this pattern. More than 90% of the song adheres to it. 28. Qualitatively, I have no doubt that the chorus of WNGTI is the part most listeners would remember (or call to mind when they think of the song). The reasons for this include: (a) the fact that the song's title is present in the lyrics of the chorus and not elsewhere; (b) the strong lyrical sentiment; (c) the fact that the words are always the same; (d) the catchiness and easy memorability of the vocal melody. 235 Fans of Twisted Sister easily recognised WNGTI in the UAP recording although it only reproduced the chorus. 236 Nevertheless, Mr Palmer contended that the chorus of WNGTI does not form a substantial part of WNGTI because it lacks originality. In opening submissions this contention rested on "the substantial similarities" with O Come All Ye Faithful. In closing submissions, however, Mr Palmer's position altered somewhat. Instead, the basis for the contention that WNGTI lacks originality was that its melody was derived from O Come All Ye Faithful and its other musical elements were generic. He relied principally on the evidence of Dr Davidson but also on aspects of Mr Snider's evidence. He argued that Mr Snider had copied the melody of WNGTI from O Come All Ye Faithful, whether consciously or unconsciously. 237 The relevant parts of Mr Snider's evidence are these. 238 In 1995, long after the release of WNGTI, a fellow musician pointed out to Mr Snider that the opening notes of the song sound similar to the opening lines of O Come All Ye Faithful, which Mr Snider had sung in the church choir from a young age. Mr Snider was surprised by the remark but did not dispute the point. Until he had this conversation he was unaware of the similarity and no-one had ever mentioned it to him. Mr Snider's evidence, which I accept, was that he was not inspired by, or otherwise thinking about O Come All Ye Faithful at the time he was writing WNGTI. 239 Mr Snider referred to these matters in his memoir, Shut Up and Give the Mic: A Twisted Memoir, published in 2012, an extract of which was tendered in evidence: Many years after I'd written the chorus to "We're Not Gonna Take It," I was riding in a van on tour with my band Widowmaker (more on them later). My guitarist Al Pitrelli was driving, and we were discussing song plagiarism. Over the years, many songs have been ripped off both unintentionally ... and intentionally. We were running through different songs that had been "appropriated" (i.e. George Harrison's "My Sweet Lord," taken from the Chiffons' "He's So Fine," and Bon Jovi's "Who Says You Can't Go Home," borrowed from Sam Cooke's "Cupid [Draw Back Your Bow]" when Al says, "And, of course, 'We're Not Gonna Take It' is 'O Come, All Ye Faithful'." "What?" "You didn't know 'We're Not Gonna Take It' is 'O Come, All Ye Faithful'?" asked Al. As I sat there dumbfounded, Al sang, "O come, all ye faithful - We're not gonna take it." Holy shit! I sang in the church choir until I was nineteen years old. I must have sung "O Come, All Ye Faithful" hundreds of times. Somehow the first six notes of it infiltrated my psyche and were transformed into "We're Not Gonna Take It!" Thank you, God! (Emphasis in original) 240 In cross-examination Mr Snider accepted that musical ideas might be subconsciously taken by an artist from an earlier work and, as he had written in his memoir, it had "infiltrated [his] psyche". But he emphasised that "the key word" was "transformed"; the first six notes of O Come All Ye Faithful had penetrated his subconscious and were "transformed into [WNGTI]". 241 Nevertheless, Mr Snider was amused by the similarity between the two songs and many years later he capitalised on it. Twisted Sister produced a cover version of O Come All Ye Faithful by recording the song over an altered version of the backing music of WNGTI, which was released on its 2006 album Twisted Christmas. He deposed that, although it was "not a natural fit", they were able to arrange the music of WNGTI to fit the lyrics of O Come All Ye Faithful. 242 Later Mr Snider produced a musical entitled A Rock and Roll Christmas Town, which included a "mash-up" of WNGTI and O Come All Ye Faithful. He admitted in cross-examination that he had contributed to the mash-up because of the similarities he saw in the two works. 243 I now turn to the expert evidence. 244 The evidence indicates that the melody of O Come All Ye Faithful is very old and its earliest publication was in 1751. 245 Dr Davidson said that there was "no objective, agreed-upon definitive version" but what is consistent in the different versions is the melodic contour and phrase structure. Other aspects, he said, such as harmony, counterpoint, rhythm, metre, tempo, key lyrics, instrumentation, timbre, and dynamics vary "quite widely" in both printed and recorded versions. 246 Dr Ford "broadly" agreed with the first statement but observed that O Come All Ye Faithful has certain "broadly consistent features", "largely stemming from its origins in plainchant and its association with group singing generally, as a choral hymn or Christmas carol". Notwithstanding the various recordings by popular artists like Mariah Carey, Bing Crosby and others, to which Dr Davidson referred in his evidence, Dr Ford stated that O Come All Ye Faithful "remains closely associated with the choral context - a hymn/carol in four-part harmony, usually with organ, piano or orchestral accompaniment", featuring "a relatively settled melody, harmony, instrumentation and rhythm". 247 The experts agreed that the melodic contour of the first phrase of the chorus of WNGTI (to which the words "We're not gonna take it" are first sung) is the same as the melodic contour of the first phrase of O Come All Ye Faithful. 248 After that, however, the opinions of the experts diverged significantly and there was little meeting of the minds following their conference. 249 Dr Ford was of the view that the only similarity between the two songs was the melodic contour of the first phrase of the chorus of WNGTI in the first phrase of O Come All Ye Faithful. Unlike Dr Davidson, Dr Ford did not consider that the similarity was "obvious" or "immediately noticeable". He maintained that the other musical differences were such that most listeners would not notice any resemblance unless the common melodic contour was drawn to their attention. 250 Dr Davidson expressed the opinion that the melodic contours of the second phrase (bars 3-4: "No, we ain't gonna take it" / "Joyful and triumphant") and third phrase (bars 5-6: "We're not gonna take it, anymore" / "O come ye, o come ye to Bethlehem") were very similar. He said of the second that, with the exception of the omission of an anacrusis (a pickup note) that is typically included in O Come All Ye Faithful, it was also the same. He said the third phrase of each was similar in contour to WNGTI, reproducing the contour of O Come All Ye Faithful taken up a third interval for the majority of the phrase. Dr Davidson considered that the most memorable and "most salient" aspect of the melody of both songs is the opening interval pattern of a falling fourth followed by a falling fifth. 251 On the other hand, Dr Ford considered that there was no notable similarity between the melodic contours of the second and third phrases of the respective pieces. Indeed, he said he noticed no similarity whatsoever until he analysed them carefully. 252 With respect to the second phrase, Dr Ford observed that, although both begin on the third degree of the scale (G#), WNGTI immediately drops to the tonic (E), while O Come All Ye Faithful descends to an F sharp. Further, although both then ascend to the fourth degree of the scale (A), O Come All Ye Faithful reaches that note on an offbeat before descending through G# and F#, whereas WNGTI emphasises the A before dropping by a fourth to the tonic E. 253 As for the third phrase, Dr Ford denied that the melodic contours were similar. He acknowledged that both descend by two notes. But he observed that O Come All Ye Faithful drops through a minor third (E - D# - C#) and WNGTI through a major third (G# - F# - E) and that, on the subsequent ascent of the two phrases, O Come All Ye Faithful climbs up a perfect fifth (C# - G#), whereas WNGTI only rises a minor third (E - G#). 254 Neither in the joint report nor in oral evidence did Dr Davidson dispute Dr Ford's observations. Nevertheless, he maintained that the melodic contours of the second and third phrases are "very similar". 255 Dr Davidson pointed to the juxtaposition of the two songs in Twisted Sister's mash-up of O Come All Ye Faithful which he perceived as "a humorous commentary on their close similarity". But Dr Ford observed that the Twisted Sister version of O Come All Ye Faithful departs from the vocal melody in WNGTI to more closely match the "standard" form of the carol and departs from the rhythm of WNGTI even in the first phrase. 256 Dr Davidson also said that "the first half" of O Come All Ye Faithful and the chorus of WNGTI follow a very standard phrase structure (a two bar phrase followed by a four bar phrase), which is found "very widely". 257 Dr Davidson dismissed from his consideration the differences in harmony because of his view that the harmony of O Come All Ye Faithful is "very diverse" and there is no "definitive version" of O Come All Ye Faithful. He said that the rhythmic style of O Come All Ye Faithful "varies widely in different versions" and some versions are "very syncopated", such as a recording by the Torero Band, Tijuana Christmas (Sound of Brass) (1968). 258 Dr Davidson also dismissed from consideration differences in tempo contending that the tempo of O Come All Ye Faithful is "very flexible". Dr Davidson regarded the thematic subject of the two works as immaterial to the question of objective similarity, especially since O Come All Ye Faithful had early associations with Jacobite political causes. On the other hand, he claimed that there was a functional similarity between the two songs in their use as rallying calls for community singing. 259 Other aspects of the musical work Dr Davidson put to one side because they were "generic". In his oral evidence he said that the chord progression of WNGTI was "not original" but "the same as many other songs", citing only Leonard Cohen's Bird on the Wire". He also said that tempi in the vicinity of 148 bpm (the tempo of WNGTI) are very common, although this statement, too, was supported by one reference only, in this instance Twisted Sister's recording of O Come All Ye Faithful. And he argued that the rhythm was not distinctive, describing it as "a very standard rock rhythm" and "typical of 1980s charting hits". He said that the hook title line of the chorus of WNGTI ("We're not gonna take it") uses the same rhythm as hooks of slightly earlier pop hits such as "You can't stop the music" by The Village People (1980) and "Don't you want me baby?" by The Human League (1981). 260 Dr Ford considered that, apart from the melodic contour of the first phrases of both songs, "[no] part of WNGTI, including the chorus, bears a notable or significant musical similarity to any part of O Come All Ye Faithful, either melodically or in terms of rhythm, harmonic progression, instrumentation, timbre, tempo and tone." He maintained that "[t]hey are very different and sound very different in those important respects". He illustrated his point by reference to the two scores: 261 I prefer the evidence of Dr Ford where it differs from that of Dr Davidson. Dr Davidson's approach was unlike that of the ordinary experienced listener and so differed from what the law requires. He dissected the music into its component parts, comparing the individual components of the copied part of WNGTI with the individual components of other works, paying little or no regard to the work as a whole. At times I felt that Dr Davidson's evidence descended into advocacy whereas Dr Ford impressed me as dispassionate throughout. Dr Ford's approach was orthodox and his breadth of experience gave him an advantage over Dr Davidson. 262 When he was asked to identify what specialised knowledge he had of listeners' perceptions of music based on his study or experience as a composer, writer and broadcaster, Dr Ford replied: I would add to composer, writer and broadcaster also educator - while I'm not currently an educator I have been in the past and I think probably quite a lot of my knowledge of the way people perceive music comes from that. But I've also spent a lot of time talking to audiences, lecturing general audiences and playing bits of music. But having said that I suspect that, in many ways, it's my own ability to hear some of the connections that my friend Dr Davidson finds in his report that makes me think that if I, as a trained musician with quite a lot of experience of listening to music, can't hear the similarities [then] other people might not be able to either. Particularly if they've had less training and experience than I have. 263 Dr Ford was then asked whether he had any experience of dealing with the reactions of listeners to music in his role as a broadcaster. This was his answer: Well, all the time. Both in terms of the guests that I interview and the people that I work with - my producers [-] and the however many thousands of people it is that listen to the radio programmes and write to me. So, yes, I have a fair experience of their perceptions of music. 264 Dr Ford went on to explain that he has been presenting The Music Show on Radio National nearly 26 years, which covers a very broad range of music, but also other "more specialist programmes" including series he has made, which have been repeated "quite a few" times and have therefore generated "quite a lot of feedback" from listeners. 265 None of this evidence was challenged. 266 I am satisfied that, contrary to Mr Palmer's contention, the copied part of WNGTI is not devoid of originality - far from it. 267 For the reasons given by Dr Ford, I reject Dr Davidson's evidence that the second and third melodic contours of the respective works are alike. As Dr Ford concluded, there are important musical differences between the musical work and the melody of O Come All Ye Faithful which give the musical work "a distinctive and original sound" and these differences make the question of any similarity between the two pieces of music immaterial to the question of its originality. 268 The experts agreed that the lyrics of the chorus of WNGTI bear "no resemblance" to the lyrics of O Come All Ye Faithful. On the other hand, as Dr Ford observed, the lyrics of the UAP recording are essentially the same as the lyrics of the WNGTI chorus. Despite the many and varied renditions of O Come All Ye Faithful, it remains a religious song and, more specifically, a Christian song. It is a hymn or carol. WNGTI is a rock anthem. The sounds of the lyrics as sung are very different. Dr Davidson paid no regard to this feature, presumably because he was not instructed to take it into account. In his opening remarks, however, he pointed out that lyrics may change the perceptions of listeners so that they may not recognise a common melody. In cross-examination, he acknowledged that to the ear of the listener the differences in the lyrics create a difference in the music and he readily accepted that the sounds made by the enunciation of the different words created a difference in the music as heard by the listener. Since Mr Palmer did not contend that in the case of a song Perram J was wrong to hold in Boomerang that "sung lyrics" are part of the musical work, these concessions are fatal to Mr Palmer's argument. 269 While Mr Snider may well have been influenced to some degree by O Come All Ye Faithful, I find that the only part he took from it, albeit unconsciously, was the melodic contour of the first phrase. Even if Dr Davidson's opinion concerning the similarities of the melodic contours of the first three phrases were to be accepted, Mr Palmer's contention would still fail. That is because that part of the musical work did not consist only of those melodic contours or, if Dr Davidson's view were to be accepted, the contours that were used in O Come All Ye Faithful. Rather, as Dr Davidson conceded in cross-examination, the chorus of WNGTI is "a combination of elements" which is different from any particular version of O Come All Ye Faithful. Those elements include the entire melody, the harmony, the key, the tempo and rhythm, the sound of the sung lyrics, the vocal timbre, singing style, and the instrumentation. Moreover, the chorus of WNGTI was more than just the sum of its parts. Further, the fact that some of the individual components of the music may be "generic" in the sense that they are common to particular kinds or styles of music does not detract from the originality of the chorus. This is to confuse originality with novelty. To hold otherwise would mean that copyright law would offer little or no protection to artists of the same school or musicians in the same field of music. What matters is the originality of the combination. 270 The chorus of WNGTI, like the work as a whole, indisputably originated with Mr Snider and it has originality. A not inconsiderable amount of skill, judgement, time and effort was involved in its production. 271 In her article, "'It's the Same Old Song': The Failure of the Originality Requirement in Musical Copyright" (2008) 18(5) Fordham Intell Prop Media & Ent LJ 1271, pp 1281-2, Valeria Castanaro explained: Musicians work with a finite set of notes and octaves in creating a composition. Further, the combination of these notes into sets of chords that are pleasing to the ear is also limited. Despite the seemingly confined raw materials for creating a musical work, musicians are able to manipulate these finite elements into infinite possible compositions. In examining originality, copyright does not look to the actual notes or chords used, but rather combinations of notes and chords that are used to create tone, melody, harmony, and rhythm … Music is also a specialised genre of copyright with regard to the idea-expression dichotomy … An artist's musical expression is inextricably linked to the mechanics of the music. The sequencing of notes and chords, the harmony, melody, beat, tempo, composition, and lyrics all work together to create a musical expression. Individually, each of these components, except for the lyrics, constitutes an unoriginal, un-copyrightable idea. Collectively, certain lyrics set to certain notes and chords played in a certain way creates an expression. It's an expression that becomes an experience to the person who listens to and engages with it … (Footnotes omitted.) 272 The only similarity the musical work bears to O Come All Ye Faithful lies in the melodic contours of the first phrase (the first six notes) of the respective works. 273 Further, while the rhythm of O Come All Ye Faithful in some recordings is syncopated, none of the examples given by Dr Davidson sounds similar to the musical work. And Dr Davidson did not suggest that the syncopation in WNGTI is the same as the syncopation in any of these examples. 274 Moreover, as Universal submitted, under cross-examination Dr Davidson expressed opinions which are inconsistent with the aural perception of the ordinary reasonably experienced listener. He asserted, for example, that Twisted Sister's recording of WNGTI is "strikingly similar" to the recording of O Come All Ye Faithful by the choir of St George's Chapel and that the recordings of O Come All Ye Faithful by Mariah Carey and the Torero Band were less similar to the St George's Chapel recording than WNGTI. With respect, these assertions seemed far-fetched to me. They were certainly "counterintuitive" as Universal argued. Dr Ford was unable to accept them and neither am I. 275 Dr Davidson put excessive weight on the mashup of O Come All Ye Faithful and WNGTI. Mr Snider's unchallenged evidence was that "[i]t was very difficult to get the two songs to work together"; it only happened after the drummer "figured out a way to shoehorn O Come All Ye Faithful into [WNGTI]". He emphasised that this was no easy thing. Dr Ford pointed out that the harmony of WNGTI does not fit the tune of O Come All Ye Faithful, which meant that for the purpose of the mash-up it was necessary for Twisted Sister to change the harmonic progression of WNGTI. 276 Equally, in pointing to the similarities between WNGTI and O Come All Ye Faithful in the Twisted Sister recording of the latter, Dr Davidson's reasoning was circular, as Dr Ford observed. Of course, Twisted Sister's recording of O Come All Ye Faithful is similar to WNGTI. That was the purpose of the exercise. 277 In any event, as Dr Ford said in his second report, the UAP recording is so similar to the chorus of WNGTI that it is obviously a copy of it and certainly not O Come All Ye Faithful.

Was the copied part a substantial part of the literary work? 278 Subject to the question of the originality of the lyrics, it could not seriously doubted that the chorus of WNGTI is an essential or material part of the literary work for many of the same reasons it forms an essential or material part of the musical work. 279 As I indicated earlier, the experts agree that the chorus of WNGTI was the most prominent part of the both the musical and the literary work. Some of the matters to which Dr Ford referred at [25]-[28] of his first report, which are extracted above at [235], apply not only to the musical work but also to the literary work. He concluded that: [T]he words of the chorus are by far the most important part of the lyrics of WNGTI both quantitatively and qualitatively. They form the part of the lyrics most listeners would remember (or call to mind when they think of the song). 280 The point of contention, once again, is originality. 281 As Perram J observed in Boomerang at [216], commonplace or prosaic statements are unlikely to be original. For that reason, his Honour said that the line "love is in the air", though used repeatedly throughout the song of the same name, was "not … in any way original". Consequently, his Honour held (at [217]) that "the lone phrase 'love is in the air'" could not be characterised as a substantial part of the literary work of that name and, by using the same line in Warm in the Winter, the electronic music duo, Glass Candy, did not take a substantial part of that work. 282 This case, however, does not concern the reproduction of a single common phrase. As Universal submitted, that which was taken here was "a key element of a set of lyrics", namely the entire chorus of WNGTI consisting of: the phrase "we're not gonna take it" or a phrase with the same meaning and conveying the same idea or message of a group of people ("we" or "Australia" or "Aussies") rebelling or standing up defiantly to the status quo; in the same quadruplet form; with increasing emphasis denoted by the use of "No" at the beginning of the second phrase and "Anymore" in the fourth. 283 There is no question that "we're not gonna take it" is not an original expression. In cross-examination Mr Snider admitted that he did not invent it. He also admitted that he was aware that there is a song of the same name on The Who's 1969 album, Tommy, although he added that "[i]t did not register with me that the song existed". 284 But the fact that the expression "we're not gonna take it" is not original does not mean that the lyrics of the chorus of WNGTI do not comprise an original literary work. Like the musical work, the literary work must be considered as a whole and, as I observed previously, originality does not require novelty and literary merit is irrelevant. The literary work consists of the phrase and two repetitions of it followed by the word "anymore". That combination is apparently unique. Certainly Mr Palmer did not suggest it had been used before WNGTI. It is true that the lyrics of the chorus of WNGTI were not precisely reproduced in the impugned work. To an Australian audience, however, the changes are immaterial. The impugned work carried the same idea as the copied work and conveyed the same message.

Conclusion 285 For all the above reasons, infringement of Universal's copyright in both the musical and the literary work is established unless Mr Palmer can make out his defence.

What is the scope of the defence? 286 Section 41A is in the following terms: A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire. 287 It is readily apparent that, like the other fair dealing defences in the Copyright Act, which are all specific purpose defences, there are two aspects to the defence. The approach to determining whether the defence is made out should therefore be no different from the approach taken to determine whether other fair dealing defences are made out. First, there must be a dealing with the work or an adaption of the work for the purpose of parody or satire. Second, the dealing must be fair for that purpose and "fairness… must be judged in relation to that purpose". See Beloff v Pressdram Ltd [1973] 1 All ER 241 at 262; [1973] RPC 765 at 786 (Ungoed-Thomas J). Fair dealing involves questions of degree and impression on which reasonable minds may differ: Nine v Ten (2001) at [66] (Conti J); Nine v Ten (2002) at [2] (Sundberg J), [98] (Hely J). This much was common ground. 288 The onus of proving the elements of the defence rests with Mr Palmer: see, for example, De Garis v Neville Jeffress Pidler Pty Limited (1990) 37 FCR 99 at [59] (Beaumont J). This much, too, was not in dispute. 289 Neither parody nor satire is defined in the Copyright Act. 290 In Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International [2005] ZACC 7; [2006] 1 SA 144 (CC) at [76]-[77] Sachs J observed: Parody is inherently paradoxical. Good parody is both original and parasitic, simultaneously creative and derivative … Parody is appropriation and imitation, but of a kind involving a deliberate dislocation … Unlike the plagiarist whose intention is to deceive, the parodist relies on the audience's awareness of the target work or genre; in turn, the complicity of the audience is a sine qua non of its enjoyment. 291 In Campbell v Acuff-Rose Music, Inc. 510 US 569 (1994) at 580-81 Souter J on behalf of the US Supreme Court said: The germ of parody lies in the definition of the Greek parodeia … as "a song sung alongside another"... Modern dictionaries accordingly describe a parody as a "literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule" or as a "composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous." For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works … If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims' imagination), whereas satire can stand on its own two feet and so requires justification for the very act of borrowing … (Footnotes omitted, emphasis added.) 292 In a footnote Souter J noted the definitions of satire in the Oxford English Dictionary - a work "in which prevalent follies or vices are assailed with ridicule" and the American Heritage Dictionary - a work "attacked through irony, derision or wit". 293 Kennedy J, concurring, observed (at 597) that "parody may qualify as fair use only if it draws upon the original composition to make humorous or ironic commentary about that same composition" and must "target the original, and not just its general style, the genre of art to which it belongs or society as a whole …" 294 Campbell was concerned with the song "Pretty Woman" by the rap group, 2 Live Crew. The Court held that it was a parody of the Roy Orbison classic of "Oh, Pretty Woman" because it "reasonably could be perceived as commenting on the original or criticizing it, to some degree" (at 583). 295 In Nine v Ten (2001) at [17] Conti J referred to the definitions of parody and satire in The Macquarie Dictionary. He observed at [17] : The Macquarie Dictionary definitions … indicate that the essence of parody is imitation … whereas satire is described as being a form of ironic, sarcastic, scornful, derisive or ridiculing criticism of vice, folly or abuses, but not by way of an imitation or take-off. 296 His Honour concluded that the distinction between parody and satire is "referrable essentially to imitation". He pointed out that imitation is in the nature of copying whereas satire involves drawing a distinction between the satirist and the author or composer of the original work. 297 Beyond this, the authorities provide little guidance. 298 "Fair dealing" defences have been in copyright legislation for over a century and in the current Act from the outset. Section 41A, however, is relatively new. Along with s 103AA, its analogue for audio-visual work, it was inserted by the Copyright Amendment Act 2006 (Cth). The Supplementary Explanatory Memorandum on the Bill which introduced the amendments stated at [42]-[44] that: 42. The amended parody and satire exceptions will apply where a person or organisation can demonstrate that the use for the purpose of parody or satire is a fair dealing. 43. These exceptions are consistent with the present structure of the Act which already contains fair dealing exceptions for criticism and review and reporting the news. Case law suggests that the use of copyright material for parody and satire is likely to overlap or be closely connected to uses for these other fair dealing purposes. 44. It is appropriate to require that a use for the purpose of parody and satire should be 'fair'. Parody, by its nature, is likely to involve holding up a creator or performer to scorn or ridicule. Satire does not involve such direct comment on the original material but, in using material for a general point, should also not be unfair in its effects for the copyright owner. 299 In his second reading speech on the Bill, the then Attorney-General, the Hon Phillip Ruddock MHR said only this: A further exception promotes free speech and Australia's fine tradition of satire by allowing our comedians and cartoonists to use copyright material for the purposes of parody or satire. See Australia, House of Representatives, Debates, 19 October 2006. 300 The first and only judicial consideration of s 41A since its enactment was in Pokémon Company International, Inc. v Redbubble Ltd [2017] FCA 1541; 351 ALR 676; 129 IPR 1. In that case, Pagone J observed at [68] that the courts had previously considered whether burlesques and parodies might not constitute infringing reproductions and referred, amongst other things, to the remarks of Conti J in Nine v Ten (2001) at [17]. His Honour went on to say at [69]-[70] that: Difficult questions of characterisation arise where a work has been used in a modified form. To qualify for the protection the use must be both fair and for the purpose of parody or satire where parody or satire is not "used as a shield to avoid intellectual work in order to benefit from the notoriety of the parodied (or satirised) work": see Productions Avanti Cine-video v Favreau (2012) 177 DLR (4th) 568 at 594 per Gendreau JA (Biron J concurring). In that case Rothman JA, agreeing with his colleagues, said at 575 that there was "an important line separating a parody of the dramatic work created by another writer or artist and the appropriation or use of that work solely to capitalize on to "cash in" on its originality and popularity". It follows from these observations, and from the express terms of s 41A of the Copyright Act, that what must be shown for the protection to be relied upon is that the use made of the work was both fair and for the purpose of parody and satire, and not just that what was produced might in the eyes of some be a parody or satire. The relationship between a dealing as "fair" and the purpose as "parody" is apt to overlap, if not to be co-extensive, but the statutory protection in s 41A requires that there be established that the person dealing with the work did so for the purpose of parody … That some of the infringing works may be humorous, or even satirical or parodies, does not establish that the use was for [that] purpose where it may fairly be concluded that the purpose was not the parody or satire but the commercial exploitation of the original work in modified form. (Emphasis added.) 301 It has been said that "fair dealing" is impossible to define: Hubbard v Vosper [1972] 2 QB 84 at 94 (Lord Denning MR). In contrast to s 40, which deals with fair dealing for the purpose of research or study, s 41A does not specify any factors which must be taken into account. Universal contends, however, that in considering whether a dealing is fair the factors listed in s 40(2) are relevant. In the absence of an argument to the contrary I propose to accept Universal's contention. Sections 41 and 42 do not contain a list of factors either. While Parliament does not require a court to take into account any particular factors, in determining whether a dealing for one of those purposes is fair, the non-exhaustive factors listed in s 40(2) would undoubtedly bear on that question. Those factors are: (a) the purpose and character of the dealing; (b) the nature of the work or adaptation; (c) the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price; (d) the effect of the dealing upon the potential market for, or value of, the work or adaptation; and (e) in a case where part only of the work or adaptation is reproduced - the amount and substantiality of the part copied [or] taken in relation to the whole work or adaptation. 302 In its 2013 report, Copyright and the Digital Economy, the Australian Law Reform Commission remarked at [5.17] that the current situation in which "fairness factors" are only mentioned in the research or study fair dealing fair dealing exceptions "makes 'little sense'". In the preceding paragraph, the ALRC referred to an observation by the Copyright Law Reform Committee that it was reasonable to assume that the matters listed in s 40(2) are also relevant to determining fair dealing for purposes other than research or study because they were derived from the case law and not limited to a specific purpose. 303 A fact sheet issued in 2008 by the Attorney-General's Department on the new exceptions for parody and satire suggested that courts could consider such factors as: whether or not the material is published; the nature of the material (cf. s 40(2)(b)); the nature of the use (cf. s 40(2)(a)); the possibility of obtaining permission from the rights holder (cf. s 40(2)(c)); and whether there has been any impropriety in obtaining the material. 304 The fact sheet also advised that if a claim for copyright infringement arises from use of copyright material, a court would need to consider whether parody or satire was the genuine or real purpose of the dealing or a pretence for some other purpose: Attorney-General's Department, New Australian Copyright Laws: Parody and Satire (Attorney-General's Department, Canberra, 2008). 305 These contextual matters suggest that Parliament intended to leave it to the courts to determine what factors were relevant in any individual case and that the factors listed in para 40(2)(b) were among them. 306 Paragraphs 40(2) (a), (b), (d) and (e) are similar to the factors listed in s 107 of the US copyright legislation relating to fair use (17 U.S.C. s107). 307 In looking at the first of these factors (in the US "the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes"), Souter J said in Campbell at 579 that the central purpose of the investigation is to see whether the new work merely supersedes the objects of the original creation or adds something new, with a further purpose or a different character, altering it with new expression, meaning or message. In other words, as his Honour put it, this factor is concerned with whether and to what extent the new work is "transformative". He explained that "[a]lthough transformative use is not absolutely necessary for a finding of fair use… the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works". The more transformative the new work, his Honour continued, the less significant other facts, such as commercialism, will be. He pointed out that "parody has an obvious claim to transformative value" because it can provide a social benefit "by shedding light on earlier work and, in the process, creating a new one". 308 In Nine v Ten (2001), a case relevantly concerned with the defence of fair dealing for the purpose of criticism or review (s 41), Conti J reviewed the authorities and at [66] extracted eight principles he derived from them. Insofar as they are relevant they include: (i) fair dealing involves questions of degree and impression; it is to be judged by the criterion of a fair minded and honest person, and is an abstract concept; (ii) fairness is to be judged objectively in relation to the relevant purpose …; in short, it must be fair and genuine for the relevant purpose, because fair dealing truth of purpose (sic); … (iv) criticism and review must be genuine and not a pretence for some other purpose, but if genuine, need not necessarily be balanced; (v) an oblique or hidden motive may disqualify reliance on criticism and review, particularly where the copyright infringer is a trade rival who uses the copyright subject matter for its own benefit, particularly in a dissembling way[.] 309 Universal relied upon these "principles". In their article, "A Real Pea Souper: The Panel Case and the Development of the Fair Dealing Defences to Copyright Infringement in Australia" (2003) 27(2) Melbourne University Law Review 381, Handler and Rolph pointed out that these were not really principles but isolated statements taken from the case law elevated to questions of principle which had the effect of "distorting their meaning" and rendering them "inappropriate as guidelines for the operation of the fair dealing defences". They considered that two distinct approaches had been taken to the fair dealing defences in the UK authorities to which Conti J referred: an expansive approach in cases involving the reproduction of material already in the public domain and a restrictive approach to hitherto unpublished works. 310 Nevertheless, Handler and Rolph appear to have accepted the observation by Robert Walker LJ in Pro Sieben AG v Carlton UK Television Ltd [1999] 1 WLR 605 at 613 (Henry and Nourse LLJ agreeing at 619) that in the Court of Appeal of England and Wales there had been "little if any dispute" about the general principles applying to fair dealing under s 30(1) and (2) of the Copyright, Designs and Patents Act 1988 (UK), respectively fair dealing for the purposes of criticism or review and fair dealing for the purpose of reporting current events. His Lordship summarised those principles in this way: It is a question of degree … or of fact and impression … The degree to which the challenged use competes with exploitation of copyright by the copyright owner is a very important consideration, but not the only consideration. The extent of the use is also relevant, but its relevance depends very much on the particular circumstances ... If the fair dealing is for the purpose of criticism that criticism may be strongly expressed and unbalanced without forfeiting the fair dealing defence … 311 His Lordship went on to cite with approval a passage from the judgment of Henry LJ in Time Warner Entertainments Co. v Channel Four Television Corporation Plc. [1984] EMLR 1 at 14 in which the following statement is made: 'Fair dealing' in its statutory context refers to the true purpose (that is, the good faith, the intention and the genuineness) of the critical work-is the programme incorporating the infringing material a genuine piece of criticism or review, or is it something else, such as an attempt to dress up the infringement of another's copyright in the guise of criticism, and so profit unfairly from another's work. 312 Although they are of limited assistance, there is no reason to think that these principles are not equally applicable to the fair dealing defences in the Copyright Act, including the defence in s 41A.

The competing arguments 313 Mr Palmer argued that his dealings were fair because: (1) The UAP recording and videos did not use all the music or lyrics to WNGTI; (2) The parts that were used had " limited originality"; (3) Mr Palmer did not intentionally breach copyright, being of the view that the conduct would not involve an infringement of copyright and "the intentions and motives of the user of the copyright material are highly relevant in relation to the issue of fair dealing": Nine v Ten (2002) at [97]; and (4) The UAP recording is not a substitute for WNGTI and Mr Palmer has not sought to compete with Universal "in respect of the market for WNGTI". 314 Mr Palmer eschewed reliance on parody. He rested his case on satire. 315 In his first affidavit at [24]-[38] he deposed that the, or a, purpose of each of the UAP videos was to ridicule a policy of the Government or the Opposition. In [24] he asserted that the videos "deal with serious issues facing Australia in a light-hearted satirical manner" and that "the issues that the recordings criticise are either recent political gaffes by politicians or policies of the major parties". Objection was taken to this evidence on the ground that it was irrelevant. I considered the objection to have been well made. At the request of Mr Palmer, however, no ruling was made at the time. Rather, by consent, the evidence was admitted provisionally, to be determined after final submissions. 316 In his opening submissions Mr Palmer argued that the test for determining purpose was a subjective one, purporting to rely on a passage in Pokémon at [70]. This accounts for the attention given to the subject of Mr Palmer's subjective purpose in his affidavit evidence. He also submitted that there was academic support for the argument, citing Suzor N, "Where the bloody hell does parody fit in Australian copyright law?" (2008) 13 MALR 218 at 236-7. Be that as it may, in closing submissions Mr Palmer resiled from his position - and rightly so. It is clear from Nine v Ten (2002) at [96]-[101] (Hely J), [1] (Sundberg J), [15] (Finkelstein J) that the test is objective or, put another way, the purpose of the dealing is to be determined objectively. The approach taken in Nine v Ten is consistent with the American interpretation of the fair use defences: see Campbell at 582 where Souter J said the "[t]he threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived …". 317 For this reason, in Nine v Ten (2002) it was said to be "neither necessary nor appropriate" for Ten to call evidence, as it did, that certain officers held a sincere belief that their purpose was one of criticism. The same must be said here. The evidence given by Mr Palmer concerning his purpose, contained in paragraphs 24 to 38 of his first affidavit, was neither necessary nor appropriate. It was irrelevant. Accordingly, it should be struck out. 318 Mr Palmer made no submission concerning the purpose of the UAP recording. Rather, he submitted that the UAP videos were "objectively for a satirical purpose" because viewed objectively each of them involves a criticism of the perceived vice, folly or abuses of the major parties and their politicians. He contended that the videos use satirical devices to deal with issues of political concern. He proffered five examples: one uses a 'buzzer' sound while cycling through the various individuals who held the office of Prime Minister between 2007 and 2015 (2mp4); "others" use deliberately unflattering images of politicians (respectively the Hon Barnaby Joyce MP and the Hon Bronwyn Bishop MP) (3.mp4 and 13.mp4); one alludes to the phenomenon of using the internet to watch cat videos (5.mp4); one uses the phrase "sod off" in relation to proposed taxation measures (7.mp4); and one uses amateurishly drawn cartoons to discuss the purchase of land and assets by Chinese nationals or entities (8.mp4). 319 Universal submitted that the defence in s 41A should be rejected at least for the following reasons: (1) the impugned works were not created, reproduced or communicated (the dealing) for the purpose of parody, that is, for the purpose of mocking or ridiculing the WNGTI, Mr Snider or Twisted Sister; (2) nor, when considered objectively were they created, reproduced or communicated for the purpose of satire because, although each UAP video contained a slogan criticising some political issue or politician(s), its purpose was to encourage people to vote for the UAP; (3) to the extent that they may have had a parodic or satirical purpose, it was a pretence for, or was supplanted by, an ulterior political purpose, citing Nine v Ten (2001) (Conti J) at 66-(v); and, in any case, (4) the dealing was not fair according to the standards of a fair-minded and honest person because: (a) Mr Palmer sought a licence for WNGTI, abandoned that plan when the approval process did not suit his political convenience and/or he did not like the price quoted, and yet went ahead with exploiting the musical and literary works; (b) Mr Palmer sought to benefit from the popularity of WNGTI, while avoiding the licence fees for WNGTI or any other song they were considering (citing Pokémon at [69]); (c) WNGTI was available for licensing within a reasonable time at an ordinary commercial price (s 40(2)(c)); (d) the exploitation of the works in the UAP recording and videos was likely to have a significant detrimental impact on the market for those works; (e) Mr Palmer and the UAP responded with a ferocious and hurtful counterattack after Universal issued letters of demand and Mr Snider complained.

Were Palmer's dealings fair for the purpose of parody or satire? 320 It is convenient to deal with the fairness of the dealings first. 321 I fail to see the relevance of Universal's last point. As Mr Palmer submitted, the focus of s 41A is on the "dealing" with a work. Mr Palmer's response to Universal's letters of demand is not part of the dealing with the works in question. Equally, I accept Mr Palmer's submission that the UAP recording is not a substitute for WNGTI. But it does not follow that Mr Palmer has not sought to compete with Universal "in respect of the market for WNGTI", as Mr Palmer submitted. The submission assumes, but does not set out to persuade, that there is no market for using WNGTI in a political campaign. Since WNGTI is a protest song, that is an improbable conclusion. In any event, the American experience proves the submission to be a fallacy. 322 I do not doubt that the use of the copyright works could have a deleterious effect on the potential market for them because they could come to be associated with a partisan cause or an unpopular party or personality. 323 I accept Mr Palmer's point that, if his use of WNGTI otherwise constituted a fair dealing with the works within s 41A, there is no reason in principle why the same use would become unfair merely because he had first sought a licence. Indeed, in Campbell, where the Supreme Court held that an otherwise infringing use of copyright material for the purpose of parody might be a fair use, the defendant had tried but failed to obtain a licence. 324 But it is relevant to whether the dealing was fair that WNGTI was available for licensing within a reasonable time at an ordinary commercial price. 325 The possibility of obtaining the works within a reasonable time at an ordinary commercial price is a mandatory consideration in determining whether dealing in a literary or musical work is fair dealing for the purpose of research of study: see s 40. Logically there is no reason why it would not also be a relevant consideration in determining whether a dealing in such a work for the purpose of parody or satire is also fair. Certainly the Parliament did not require that it be excluded from consideration. Although it is not expressly mentioned in s 107 of title 17 of the US Code, the availability of a licence is regarded as relevant to fair use in US copyright law. That is apparent from Campbell. 326 I accept that all the parts of WNGTI used by Mr Palmer were not entirely original. I also appreciate that he did not take the whole of the copyright work. In taking the chorus of WNGTI, however, Mr Palmer took what the experts agreed was the most prominent feature of both the literary and the musical works, what Dr Davidson described as "the signature part of the song" and Dr Ford as "by far" its most important part, "both quantitatively and qualitatively": see [234]-[235] above. Moreover he took that part without altering the music and by only tinkering with some of the words without changing their meaning or message. Negligible creativity was involved. To use the American language, Mr Palmer's dealing in the copyright works was not "transformative". It is plain that Mr Palmer was merely capitalising on the notoriety or popularity of WNGTI. 327 Furthermore, I am not persuaded that Mr Palmer did not intentionally breach Universal's copyright. The contemporaneous documents suggest otherwise and, although in this proceeding Mr Palmer insisted WNGTI was not an original work and Universal had no legal rights to the song, he proved himself to be an unreliable witness - so unreliable in fact that, absent independent corroboration, I concluded that it would be dangerous to rely on his word. I am not satisfied that Mr Palmer genuinely believed that WNGTI was not original or that Universal had no legal rights to the song. 328 If Mr Palmer genuinely held that belief, one would expect him to have conveyed it to his agent and to have done so in no uncertain terms. Yet Mr Wright's evidence was that Mr Palmer asked him to "get the rights to that song" and as late as the evening of 30 October 2018, Mr Wright was complaining to Mr Palmer about Universal being "sticklers for their rules" about seeking approval from "the writer" to use "his music". He even suggested to Mr Palmer approaching Mr Snider directly. Nothing in the contemporaneous documents nor in Mr Wright's evidence indicates that Mr Palmer ever mentioned to Mr Wright that he did not believe that WNGTI was not an original work or that Universal did not have any legal rights over the song. The first time Mr Palmer made any such allegation was on 8 January 2019, five days after Universal had dispatched their letter of demand, and more than a month after the first video had been broadcast. Of course it is theoretically possible that Mr Palmer believed that Universal did hold the legal rights to the song but changed his mind after he saw the Morgan tweet on 5 January 2019 or after receiving legal advice. But that was not Mr Palmer's evidence. 329 Mr Palmer's use of WNGTI was opportunistic. He saw political and personal advantage in both its notoriety or popularity and the message it conveyed and he thought that he could get away with using it merely by altering some of the words. He was wrong. 330 Taking all relevant matters into account I am not satisfied that Mr Palmer's use of the copyright works constituted fair dealing. 331 As for the question of purpose, I accept Mr Palmer's submission that merely because the UAP recording and the videos were made for use in a political campaign does not mean that he falls outside s 41A. That is apparent from Nine v Ten (2002), which concerned the defences in ss 103A (fair dealing for the purpose of criticism or review) and 103B (fair dealing for the purpose of reporting news), the equivalents of ss 41 and 42 for audio-visual items. There, Hely J said at [104]: Ten's purpose in broadcasting its programme "The Panel" may have been, as Nine asserts, to entertain and to achieve ratings. If it does so by means of a programme involving or including criticism, review or reporting of news in which there is fair dealing with material in which copyright would otherwise subsist, then Ten is not disentitled from relying on the ss 103A and 103B defences by reason only of the commercial nature of its activities. Criticism may involve an element of humour, or "poking fun at" the object of the criticism. The fact that news coverage is interesting or even to some people entertaining, does not negate the fact that it could be news: Nine Network Australia Pty Ltd v Australian Broadcasting Corporation (1999) 48 IPR 333 at 340 [34]-[37]. News may be reported with humour and still fall within the ambit of s 103B. 332 Thus, the mere fact that the copyright material is used in a political campaign does not mean that it does not have a satirical purpose. I also accept Mr Palmer's submission that the quality of the satire is irrelevant. But I cannot accept that Mr Palmer's dealings in the musical work or the literary work were for the purpose of satire. 333 A total of 19 videos were admitted into evidence. Eighteen were contained in Exhibit E, which comprised the recordings and videos tendered by Universal, and an additional one in exhibit SDT-1 to Mr Tonkin's first affidavit. All but one run for 15 seconds, the 17th in the list below for 30 seconds. Each has a single message. 334 The first four are different versions of an advertisement entitled "WNGTI DROUGHT. Each of these opens with footage of drought-affected farmland, with dust trailing sheep walking across arid paddocks and a dead sheep decomposing beside a dam. The images are sliced in half diagonally and cut to a yellow background containing text reading "50,000 million spent on NBN" and "Only 200 million spent for drought relief". The UAP logo then appears above text reading "Vote 1 United Australia Party", before closing with the authorisation statement. 335 The other videos follow this format. The next two are entitled "BANKING" and "LAND SALES" and are both dated 22 October 2018. The "BANKING" video opens with images of the logos of the "Big Four" banks, before transitioning to text reading "Protect all Australians' rights" and "Royal Commission into banking and liquidators". The "LAND SALES" video opens with a black silhouette of Australia on a yellow background. A blue line rises higher as a percentage figure increases, stopping at 25%. Text then appears reading "25% land transfers to foreign companies WE'RE NOT GOING TO TAKE IT". 336 These videos are certainly critical but they are not satirical, nor do they use satirical devices. 337 The seventh video is entitled "Stop Political Perks" and contains an unflattering photograph of Ms Bishop. She appears upset and is superimposed in front of a photograph of a helicopter. The image splits in half to text reading "NO MORE WASTE OF TAXPAYERS' MONEY" and "STOP POLITICAL PERKS!" 338 The eighth video is entitled "New Zealander of the Year" and opens with a photograph of Mr Joyce in the House of Representatives with a maniacal look on his face. The image cuts in half to text reading "NEW ZEALANDER OF THE YEAR" before the UAP logo appears. 339 The ninth video, "Banking Rip Offs", begins with a gavel smashing an egg in slow motion. It then cuts to text reading "BANKING RIP OFFS WE'RE NOT GONNA COP IT". 340 The 10th video, entitled "WA is Worth 100", is similar to the "LAND SALES" advertisement. It features a silhouette of Western Australia containing symbols of individuals representing various industries. A green bar rises along the silhouette before the image cuts in half to text reading "Getting 80% of GST back! WA PEOPLE ARE WORTH 100%". 341 The next video is entitled "Shorten's Taxes". It begins with an assortment of news clippings relating to the tax policies of the Australian Labor Party. A red banner then appears on the screen containing the text: "SHORTEN'S TAXES". The image then splits in half to text reading "SOD OFF SHORTEN'S TAXES WE'RE NOT GOING TO COP IT". 342 The 12th video begins with footage of an electricity station at sunset. It then transitions to text reading "NETWORK AND POWER RIP OFFS WE'RE NOT GONNA COP IT". 343 The 13th is entitled "Want Stability". It features photographs of Prime Ministers Kevin Rudd, Julia Gillard, Tony Abbott, Malcolm Turnbull and Scott Morrison being swiped left before a question mark appears on a yellow background. It then cuts to text reading "WANT STABILITY?" before the UAP logo appears. 344 The 14th video is entitled "Dual Citizens Debacle" and begins with black and white photographs of various members of the Federal Parliament. The words "DUAL CITIZENS DEBACLE" then appear across the photographs, before a large red cross strikes them out. The video transitions to text reading "AUSTRALIANS TO RUN AUSTRALIA FOR AUSTRALIANS". 345 The 15th video, "Nothing to Feed Your Animals", opens with footage of sheep in a dusty paddock, similar to the imagery in "WNGTI DROUGHT". The image cuts in half to text reading "LABOR & LIBERAL HAVE SPENT $55 BILLION ON THE NBN" before text appears beneath reading "NOTHING TO FEED YOUR ANIMALS". 346 The 16th video is entitled "No More Foreign Control". It starts with video footage of former Labor Senator Sam Dastyari speaking at a media conference, without audio. White text reads beneath him: "Labor Senator's expenses paid by Chinese Government". The image then splits diagonally in half to text reading "NO MORE FOREIGN CONTROL" before text reading "OF POLITICANS" appears beneath. 347 The 17th video is an extended version of the 13th, running for 30 seconds. It is also entitled "Want Stability" and contains additional images of politicians being swiped left, including Peter Dutton, Julie Bishop, Anthony Albanese and Ms Bishop, before text appears reading "WANT STABILITY?'. 348 The 18th video is entitled "Stop the Sale". It opens with an animated silhouette of a map of Australia with an Australian flag, with various symbols and text scattered across it, including "Port", "Airport", "School" and "Hospital". An animated silhouette of a map of China with a Chinese flag draws closer to Australia, with an animated arm extending out of it with a hand clenching green bank notes. An arm extends out of Australia to accept the money, before the Australian silhouette turns grey and the symbols turn red and shrink in size. A symbol of an electricity pylon in the centre of Australia grows larger as green dollar signs swarm across the screen into the pylon. The image then cuts to a yellow background with text reading "STOP THE SALE". 349 The final video, contained in annexure SDT-1, is entitled "Still Buffering". It opens with a video of a cat playing with a toy before a "BUFFERING" symbol appears and the image of the cat blurs. The video flickers to a yellow background with text reading "$55 Billion spent on NBN" and "STILL DOESN'T WORK". 350 Mr Palmer's argument was ambitious, to say the least. 351 Without doubt the overwhelming majority of these videos could not conceivably be said to have a satirical purpose. Video 15, for example, merely refers to the expenditure on the NBN and follows that with the line: "Nothing to feed your animals". Given their aggressive tone and defiant message, evident by the use of capitalised words such as "stop", "rip off", "sod off", and "we're not gonna cop it", the videos relating to drought, land sales, electricity prices, Labor's taxation policy, the National Broadband Network, and "foreign control" do not involve "an ironic, sarcastic, scornful, derisive or ridiculing criticism of some vice, folly or abuse". Their purpose is to protest against, or criticise, Government or Opposition as the case may be. 352 With one possible exception, none of the "examples" valiantly seized upon by Mr Palmer's counsel could be regarded as satirical, let alone have a satirical purpose. I see nothing satirical in the procession of Prime Ministers videos. I fail to see what difference the sound of a buzzer makes. The "buffering" video is the one which features a cat. I am prepared to accept that it is an allusion to the so-called phenomenon of using the internet to watch cat videos, but there is nothing satirical about it. The focus of the video is the NBN. Without more, the use of animation in video 18, whether "amateurish" or not, does not indicate that its purpose is satirical. Similarly, the mere fact that Mr Joyce looks ridiculous in one video and Ms Bishop sports a silly expression in another does not mean those videos have a satirical purpose. I acknowledge that the Joyce video might be different because of the use of the caption: "New Zealander of the Year". In my view it is the only one of the videos that could possibly be described as satirical. 353 In any event, even if it could be said that any of the videos had a satirical purpose, it is the images that were said to be used for that purpose, not the copyright works as embodied in the UAP recording, and the UAP videos are only said to infringe Universal's copyright to the extent that they incorporate the UAP recording. The point is that to attract the protection of s 41A, it is the dealing in the copyright works themselves that must be for the purpose of parody or satire. WNGTI was not used to satirise anyone or anything, nor were the lyrics as varied. On an objective assessment, the sole purpose to which the copyright works were put was to underscore the UAP's key campaign message and to rally the faithful and the disaffected to the UAP's cause. 354 A good example of the use in a video of a musical work for a satirical purpose is provided in the article by Jani McCutcheon, "The New Defence of Parody or Satire under Australian Copyright Law" (2008) 2 IPQ 163 at 178. It appeared in what Ms McCutcheon called "a manipulated video", produced in the aftermath of the Iraq war, in which US President George W Bush and British Prime Minister Tony Blair appear to sing "Endless Love" by Lionel Ritchie, first recorded by Lionel Ritchie and Diana Ross. The purpose to which the song was put was to satirise the relationship between Bush and Blair.

Conclusion 355 The dealings in the copyright works were neither fair nor for the purpose of parody or satire. 356 It follows that Mr Palmer's defence fails.

Relief 357 Subject to the Copyright Act, the relief a court may grant in an action for infringement of copyright includes an injunction and either damages or an account of profits: s 115(2). In an appropriate case, having regard, amongst other things, to the flagrancy of the infringement, the need for deterrence, and any benefit shown to have accrued to the infringer, a court may award additional damages: s 115(4). No reliance was placed on s 115(3), which prevents a plaintiff from recovering damages under the section (limiting pecuniary relief to an account of profits) if "it is established" that at the time of the infringement the defendant was not aware and had no reasonable grounds for suspecting that the act constituting the infringement was a breach of copyright.

The dispute 358 Universal submitted that the damages for which s 115(2) provides should be calculated based on a reasonable licence fee that would have been charged for the infringing use. This would be an application of what is sometimes referred to as "the user principle", an expression said to have been coined by Nicholls LJ in Stoke-on-Trent City Council v W & J Wass Ltd [1988] 1 WLR 1406 at 1416. 359 Mr Palmer, on the other hand, submitted that this approach was inappropriate in the present case because Universal's evidence suggests that it would not have granted a licence at all or at least because it has not proved that it would have and, in any event, no licence would have been agreed because Mr Palmer's evidence established that he was not prepared to enter into one. In substance Mr Palmer contended that, since damages are intended to compensate an applicant for the loss caused to it by the respondent's wrongdoing, it is illogical to award damages based on a reasonable licence fee when no licence would have been agreed. The effect of his argument is that, despite his wrongful use of Universal's property and because he would never have agreed to Universal's terms, it was not open to the Court to award anything more than nominal damages. 360 Mr Palmer relied on Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (in liq) (2007) 157 FCR 564 at [27], where Black CJ and Jacobsen J held that "a royalty does not provide the appropriate measure of damages where the copyright owner would not have granted a licence", citing Columbia Pictures Industries Inc. v Luckins [1996] FCA 542; 34 IPR 504 at 509 (Tamberlin J); Autodesk Australia Pty Ltd v Cheung [1990] FCA 121; 94 ALR 472 at 476-477 (Wilcox J); and Microsoft Corporation v Goodview Electronics Pty Ltd [2000] FCA 1852; (2000) 49 IPR 578 at [55] (Branson J). He submitted that the Court was bound by Aristocrat. 361 In Cheung, upon which Mr Palmer also relied, Wilcox J said this at 476-477: The "licence fee" approach to assessment has often been applied: see, in addition to Grebo, Meters Ltd v Metropolitan Gas Meters Ltd (1911) 28 RPC 157, Stovin-Bradford v. Volpoint Properties Ltd (1971) 1 Ch.1007, General Tire and Rubber Company v Firestone Tyre and Rubber Company Limited [[1975] 2 All ER 173; [1975] 1 WLR 819]; (1975) 1 FSR 273, Hunter v Fitzroy Robinson and Partners (1977) 4 FSR 167. The approach has the attraction of precision. In a case where the court may infer that, presented with a choice between paying the licence fee and not using the work, the infringer would have paid the licence fee, the approach is also a logical one. Ex hypothesi the copyright owner has been deprived of a licence fee. But, where this inference cannot be drawn, it is much more difficult to say that the damage sustained by the copyright owner is equal to a licence fee. No assumption can be made that, if forced to obtain a licence, the defendant would have copied the work, or copied it to the same extent. (Emphasis added.) 362 In Columbia at 509 and Microsoft at [55] the Court purported to follow Cheung. In Columbia Tamberlin J held that "the licence fee approach" is inappropriate where it is clear that a licence would never have been granted "because of the disruption such a licence would inflict on the applicants' basic strategic marketing timetable in Australia". In Microsoft Branson J held that "the licence fee approach will only be appropriate where an inference may be drawn that consumers would have purchased genuine copies of Windows 95 at market rates if they had not purchased infringing copies". 363 Mr Palmer submitted that Cheung and Microsoft establish that there is no relevant distinction between a case in which the copyright holder is unprepared to grant a licence and one in which the infringer and notional licensee will not agree to one.

The nature of damages under s 115(2) 364 Both Universal and Mr Palmer referred to damages covered by s 115(2) as compensatory. In Interfirm Comparison (Australia) Pty Ltd v Law Society (NSW) (1975) 6 ALR 445 at 446 Bowen CJ in Eq said that the purpose of damages is to compensate the plaintiff for the loss he suffered as a result of the defendant's breach. But damages have been characterised as compensatory even in the absence of demonstrable loss. In Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420 at [177] Allsop P explained that patent infringement is an interference with, or invasion of, a property right and "if a property right has been invaded by wrongful user, the law should and does provide a remedy for the wrong, compensatory in character in the broad sense, focusing on the interference with the right in question". Damages are awarded as compensation to right the wrong (to "redress the wrongdoing": Marathon Asset Management LLP v Seddon [2017] EWHC 300 (Comm) at [202]) irrespective of whether loss can be proved. 365 On one view the damages Universal seeks are not compensatory but restitutionary. Restitutionary damages reverse a wrongful transfer of value: Edelman J, Gain-Based Damages (Hart Publishing, 2002) p 66. As Mr Edelman, now the Hon. Justice Edelman, explained at 243: Restitutionary damages reverse a wrongful transfer of value and are the corresponding remedy in the law of wrongs to restitution in the law of unjust enrichment. They subtract from a defendant any (usually objective) benefit transferred from a claimant. They differ from compensatory damages in that the claimant need not have suffered any financial loss - the only requirement is that some objective benefit has been wrongfully obtained by the defendant through the claimant's assets or rights or their use. 366 In Attorney-General (UK) v Blake [2001] 1 AC 268 at 279 Lord Nicholls said that awards of damages made under the user principle are "probably best regarded as an exception to the general rule" that damages are awarded as compensation for the injured party's loss because, although the injured party's rights were invaded, he suffered no loss. Edelman described the proposition that a reasonable royalty is a measure of compensatory damages as a "fiction", which he said has been rejected including in the leading speech by Lord Nicholls in Blake and in the United States in Vermont Microsystems Inc v Autodesk Inc 88 F 3d 142 (1996) (2nd Cir CA) (at pp 225-226). But in the latest edition of McGregor on Damages (Sweet & Maxwell, 21st ed, 2021) at [14-007] Edelman wrote that "the cost of rectifying the wrongful act might be described as a loss if 'loss' is given a looser meaning … even if that has no adverse effect on the claimant". Treating the loss as the cost of rectifying the wrong, he explained, effectively treats the power to licence as an asset which was lost. 367 Be that as it may, it makes no difference here whether the damages are characterised as "compensatory", "restitutionary" or, as Yates J put it in Winnebago Industries Inc v Knott Investments Pty Ltd (No 4) (2015) 241 FCR 271 at [14], compensatory with "a restitutionary aspect". Edelman argued that restitutionary damages should always be available where a wrongful transfer of value has occurred. While s 115(2) distinguishes between "damages" and an account of profits, which are sometimes referred to as "disgorgement damages", it does not exclude restitutionary damages.

Is the user principle applicable? 368 In Winnebago Yates J conducted a comprehensive review of the authorities and provided a detailed analysis of the user principle. His Honour explained the nature of the principle this way at [13]: Under this principle, a plaintiff is entitled to recover, by way of damages, a reasonable sum from a defendant who has wrongfully used the plaintiff's property. The plaintiff may not have suffered actual loss from the use, and the wrongdoer may not have derived actual benefit. Nevertheless, under the principle, the defendant is obliged to pay a reasonable sum for the wrongful use. The reasonable sum is sometimes described as a reasonable rent, hiring fee, endorsement fee, licence fee or royalty (amongst other expressions), depending on the property involved and the nature of the wrongful use. (Emphasis added.) 369 In his review of the authorities at [15], Yates J observed that from the 19th century the English courts have accepted that damages of this kind may be awarded for trespass to land even where there is no diminution in the value of the land (Phillips v Homfray (1871) LR 6 Ch App 770; Whitwham v Westminster Brymbo Coal & Coke Company [1896] 2 Ch 538) or where a tenant has remained in residence after the expiration of a lease without evidence that he could or would have let the property to anyone else (Swordheath Properties Ltd v Tabet [1979] 1 WLR 285; Inverugie Investments Ltd v Hackett [1995] 1 WLR 713; [1995] 3 All ER 841); for tortious interference with chattels even where the owner has suffered no loss (Strand Electric & Engineering Company Ltd v Brisford Entertainments Ltd [1952] 2 QB 246, see esp. 253-5 per Denning LJ; 256-257 per Romer LJ, followed in Australia in Gaba Formwork Contractors Pty Ltd v Tuner Corporation Ltd (1991) 32 NSWLR 175 at 188 per Giles J and by the NSW Court of Appeal in Bunnings esp per Allsop P at [175]-[178]); and for misuse of confidential information where the plaintiff cannot prove he has suffered a diminution in his profits or licence revenue or that he would have sold the confidential information but for the breach (Force India Formula One Team Ltd v 1 Malaysia Racing Team Sdn Bhd [2012] EWHC 616; [2012] RPC 29 at [424] (Arnold J)). 370 In Swordheath the defendants had remained in occupation of residential property after a lease had come to an end. In that case, Megaw LJ (with whom Browne and Walter LJJ agreed) said at 288: It appears to me to be clear, both as a matter of principle and of authority, that in a case of this sort the plaintiff, when he has established that the defendant has remained on as a trespasser in residential property, is entitled, without bringing evidence that he could or would have let the property to someone else in the absence of the trespassing defendant, to have as damages for the trespass the value of the property as it would fairly be calculated; and, in the absence of anything special in the particular case it would be the ordinary letting value of the property that would determine the amount of the damages. 371 In Inverugie Lord Lloyd of Berwick, giving the judgment of the Board, said at 717 that the cases establish beyond doubt that a person who lets out goods on hire or a landlord of residential property can recover damages from a trespasser regardless of whether he can show that he would have used the property himself. 372 In Winnebago, Yates J also observed at that the user principle has been accepted as a basis for awarding damages for infringement of intellectual property rights, including patent infringement (at [30]-[40]); copyright infringement (at [42]-[46]), in both Australia and overseas, including by Bowen CJ in Eq in Interfirm at 446-447 and by the Full Court of this Court in Bailey v Namol Pty Limited (1994) 53 FCR 102 at 111-2 (Burchett, Gummow and O'Loughlin J) and Aristocrat; and trade mark infringement and passing off (at [50]-[62]). 373 While in Aristocrat Black CJ and Jacobson J appear to have thought that damages should not be assessed in this way when as a matter of fact a licence would not have been granted, I respectfully suggest that that view appears to be based on a misunderstanding of the authorities. There seems to be no reason in principle to support such a view, particularly in the face of the long line of patent infringement cases in which the contrary position has been accepted and is now orthodox. 374 One of the patent cases Yates J discussed in Winnebago is Watson, Laidlaw & Company Ltd v Pott, Cassels & Williamson (1914) 31 RPC 104. In that case, Lord Shaw said that the user principle "plainly extends … to patent cases" but is not confined to them. His Lordship explained at 119: [W]herever an abstraction or invasion of property has occurred, then, unless such abstraction or invasion were to be sanctioned by law, the law ought to yield a recompense under the category or principle, as I say, either of price or of hire. If A, being a liveryman, keeps his horse standing idle in the stable, and B, against his wish or without his knowledge, rides or drives it out, it is no answer to A for B to say: "Against what loss do you want to be restored? I restore the horse. There is no loss. The horse is none the worse; it is the better for the exercise." 375 His Lordship continued: Otherwise, that property which consists in the monopoly of patented articles granted to the patentee has been invaded, and indeed abstracted, and the law, when appealed to, would be standing by and allowing the invader or abstractor to go free. In such a case a royalty is an excellent key to unlock the difficulty … Each of the infringements was an actionable wrong, and although it may have been committed in a range of business or of territory which the patentee might not have reached, he is entitled to hire or royalty in respect of each unauthorised use of his property. Otherwise, the remedy might fall unjustly short of the wrong. 376 These comments are particularly apt in the present case. 377 In Blake at 279 Lord Nicholls described the principle enunciated by Lord Shaw in Watson, Laidlaw & Co as "established" and "not controversial". His Lordship explained the principle in the following way: The reality is that the injured person's rights were invaded but, in financial terms, he suffered no loss. Nevertheless the common law has found a means to award him a sensibly calculated amount of money. 378 This is part of the context in which copyright legislation, including the Copyright Act, was enacted. 379 Yates J observed in Winnebago at [42] that the user principle was applied to award damages for infringement of copyright in a design in Blayney v Clogau St David's Gold Mines Ltd [2003] FSR 19 (CA). In that case the infringer argued that the patent cases do not support an award of damages for the sale of infringing articles which would not have been made by the patentee and that, even if they did, the application of the user principle in patent cases should not be extended to other forms of intellectual property. The appeal court emphatically rejected those arguments. After referring to Watson, Laidlaw & Co, Sir Andrew Morritt V-C, with whom Rix and Jonathan Parker LJJ agreed, said at [20] that he could see no reason why the rule in patent infringement cases should not apply to cases of copyright infringement. He explained: In each case the infringement is an interference with the property rights of the owner, Copyright, Designs and Patents Act 1988, s. 1(1) and Patents Act 1977, s. 30(1). Though the nature of the monopoly conferred by a patent is not the same as that conferred by copyright I see no reason why that should affect the recoverability of damages in cases where the monopoly right has been infringed. The fact that the claimant may not be able to prove the application of one measure of damages, namely lost sales, does not mean that he has suffered no damage at all, rather some other measure by which to assess the compensation for that interference must be sought. Whilst, no doubt, there are differences between the rights granted to a patentee and those enjoyed by the owner of the copyright they draw no distinction between the effect of an infringement of a patent rather than a copyright. (Emphasis added.) 380 In Winnebago at [44] Yates J noted that in Bailey at 112, in support of the statement that a licence fee or royalty is an appropriate measure of damages, the Full Court quoted with approval the following passage from Wells THW, "Monetary Remedies for Infringement of Copyright" (1989) 12 Adelaide Law Review 164 at 168: For a single act of user, for example of an architect's plans, damages are the equivalent of a licence fee; for multiple reproductions, damages are assessed on a royalty basis. Awarding such damages seems at odds with the usual tortious principle of compensation, since it suggests a ratification of the tortious acts. But copyright is not only the right to restrict interference with the copyright subject-matter as a piece of property. Copyright embodies rights to control and exploit that subject matter, and user by the defendant without licence represents an invasion of those rights. (Emphasis added.) 381 His Honour observed at [47] that "the reasoning of Black CJ and Jacobson J [in Aristocrat] is at odds with the user principle". He explained that the user principle does not only apply where the property owner is willing to offer a licence and the wrongful user to accept it or on the willingness of the wrongful user to pay a royalty or licence fee. He continued: The user principle can be understood as proceeding on the basis of an hypothetical negotiation in which both parties are presumed to act reasonably. As Lord Walker of Gestingthorpe remarked when delivering the judgment of the Board in Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370 at [49], the fact that one or both parties would in practice have refused to make a deal is to be ignored: see also Wrotham Park Estate Company Ltd v Parkside Homes Ltd [1974] 1 WLR 798 at 815; Jaggard [Jaggard v Sawyer [1995] 1 WLR 269] at 282-283; 32Red plc v WHG (International) Ltd [2013] EWHC 815 (Ch) (32Red plc) at [38]; Kohler [Kohler Mira Ltd v Bristan Group Ltd (No 2) [2015] FSR 9] at [41]. 382 After concluding his review of the authorities, Yates J remarked at [63]: These cases and the literature to which I have referred reveal a principled and established basis for awarding damages on the user principle for the tortious interference with property, including intellectual property. Indeed, the patent cases are regarded as paradigmatic of damages awarded on that basis. As I have discussed, the approach to awarding damages in patent cases on this basis has been extended to damages for the wrongful interference with other forms of intellectual property, including, in passing off, for the wrongful interference with a plaintiff's reputation. 383 Winnebago concerned an action for passing-off. In that case the applicant accepted that it would not have been willing to allow the respondents to use the Winnebago marks for a reasonable royalty or licence fee. Like Mr Palmer in the present case, the respondents in Winnebago relied heavily on Aristocrat, submitting that it was binding on his Honour and prevented him in the circumstances from finding that damages could be awarded based on a reasonable royalty (at [48]). Like Mr Palmer in the present case, they submitted that damages, assessed on the basis of a reasonable royalty, are not available where the facts establish that the owner of the property in question would never have licensed it to the infringer (at [67]). Yates J rejected both submissions (at [48] and at [69]), observing that, to the extent that the reasoning of Black CJ and Jacobson J at [26]-[28] was binding on him, that could only be the case with respect to damages for copyright infringement under s 115(2) of the Copyright Act, and referred to a number of authorities where damages under the user principle had been awarded for trade mark infringement and passing off. In any case his Honour did not consider that the remarks of Black CJ and Jacobson J at [26]-[28] were intended to lay down any principle. He did not accept that their Honours were dealing with anything other than the particular claim before the Full Court (at [69]). Universal makes the same point in the present case. 384 Moreover, I agree the remarks of Black CJ and Jacobson J are not binding, even in this case, for it is tolerably clear that they were obiter dicta and not seriously considered dicta at that. The same is true of the remarks of Wilcox J in Cheung. 385 In Aristocrat the copyright owner (Aristocrat) did not seek to establish that it would have granted a licence to the infringer and their Honours inferred that it would not have been prepared to do so (at [28]). Further, their Honours pointed out that Aristocrat did not lead evidence that licences were granted to users at any particular rate, let alone at the rate claimed in that case. Their Honours accepted that where damage has occurred the Court must do its best to assess it even if some degree of speculation and guess work is involved but when the quantification of royalties charged by a copyright owner is entirely within its own knowledge the Court should not be left to speculate (at [35] and [29]). 386 In Cheung the copyright owner (Autodesk) sought damages on the basis of lost profits from lost sales. It did not mount a case for damages based on a reasonable licence fee. 387 In any event, in neither Aristocrat nor Cheung or, for that matter, in Columbia or Microsoft did the Court hold that the many authorities carefully examined by Yates J in Winnebago, which support the application of the user principle in cases where no licence would have been entered into, were wrongly decided or should not be followed. Indeed, they were not even discussed. I infer that the Court was not taken to them. 388 As Yates J recognised and the learned authors of Lahore have also observed, the statement by the majority in Aristocrat "marks a significant divergence from longstanding English authority" (Lahore at [36,220]). It is not apparent that Black CJ and Jacobson J intended to depart from the English authorities. Blake did not rate a mention. Indeed, their Honours made no reference to any of them except General Tire and then only in passing. Similarly, in Cheung Wilcox J mentioned General Tire but did not discuss it. In Columbia and Microsoft the Court only referred to Cheung. 389 In each of Cheung, Columbia and Microsoft the Court nevertheless considered that damages were "at large". Furthermore, since Columbia and Cheung and also Microsoft this Court has held that, even in cases in which a licence would not have been granted, a reasonable licence fee determined under the user principle provides a useful basis for determining the amount of damages "at large": LED Builders Pty Ltd v Eagle Homes Pty Ltd [1999] FCA 584; 44 IPR 24 at [188] (Lindgren J); Nominet UK v Diverse Internet Pty Ltd (No 2) [2005] FCA 1773; 68 IPR 131 at [43] (French J). In Nominet at [43] French J acknowledged that there was "a degree of unreality in assessing damages on a notional licensing arrangement which is never likely to have occurred" but, following LED Builders, observed that a fee assessed in this way may provide a useful basis for determining damages under s 115(2) and proceeded to do so. I note that in Nominet French J cited CAJ Amadio Constructions Pty Ltd v Kitchen (1991) 23 IPR 284, in which Debelle J in the South Australian Supreme Court held that the most appropriate measure of damages for infringement of copyright held by a construction company in building plans was the fee which would be charged for a licence although it does not licence the use of its plans. None of these decisions were mentioned by Black CJ and Jacobson J in Aristocrat. 390 In Winnebago Yates J discussed General Tire at length at [35]-[40] and later in his reasons a number of cases that applied it to damages in trade mark infringement and passing off. His Honour observed at [35] that in General Tire Lord Wilberforce, with whom Viscount Dilhorne, Lord Diplock and Lord Kilbrandon agreed, identified three main groups of reported cases that exemplify the judicial approach to assessing damages for patent infringement. The relevant group is the third, of which his Lordship said this in a passage part of which was extracted by Yates J in Winnebago at [38] (and appears at [1975] 2 All ER 173 at 178-9; [1975] 1 WLR 819 at 826): In some cases it is not possible to prove either (as in 1) that there is a normal rate of profit, or (as in 2) that there is a normal, or established, licence royalty. Yet clearly damages must be assessed. In such cases it is for the plaintiff to adduce evidence which will guide the court. This evidence may consist of the practice, as regards royalty, in the relevant trade or in analogous trades; perhaps of expert opinion expressed in publications or in the witness box; possibly of the profitability of the invention; and of any other factor on which the judge can decide the measure of loss. Since evidence of this kind is in its nature general and also probably hypothetical, it is unlikely to be of relevance, or if relevant of weight, in the face of the more concrete and direct type of evidence referred to under 2. But there is no rule of law which prevents the court, even when it has evidence of licensing practice, from taking these more general considerations into account. The ultimate process is one of judicial estimation of the available indications. The true principle, which covers both cases when there have been licences and those where there have not, remains that stated by Fletcher Moulton L.J. in Meters Ltd. v. Metropolitan Gas Meters Ltd. (1911) 28 R.P.C. 157, 164-165: though so often referred to it always bears recitation. "There is one case in which I think the manner of assessing damages in the case of sales of infringing articles has almost become a rule of law, and that is where the patentee grants permission to make the infringing article at a fixed price-in other words, where he grants licences at a certain figure. Every one of the infringing articles might then have been rendered a non-infringing article by applying for and getting that permission. The court then takes the number of infringing articles, and multiplies that by the sum that would have had to be paid in order to make the manufacture of that article lawful, and that is the measure of the damage that has been done by the infringement. The existence of such a rule shows that the courts consider that every single one of the infringements was a wrong, and that it is fair-where the facts of the case allow the court to get at the damages in that way-to allow pecuniary damages in respect of every one of them. I am inclined to think that the court might in some cases, where there did not exist a quoted figure for a licence, estimate the damages in a way closely analogous to this. It is the duty of the defendant to respect the monopoly rights of the plaintiff. The reward to a patentee for his invention is that he shall have the exclusive right to use the invention, and if you want to use it your duty is to obtain his permission. I am inclined to think that it would be right for the court to consider what would have been the price which-although no price was actually quoted-could have reasonably been charged for that permission, and estimate the damage in that way. Indeed, I think that in many cases that would be the safest and best way to arrive at a sound conclusion as to the proper figure. But I am not going to say a word which will tie down future judges and prevent them from exercising their judgment, as best they can in all the circumstances of the case, so as to arrive at that which the plaintiff has lost by reason of the defendant doing certain acts wrongfully instead of either abstaining from doing them, or getting permission to do them rightfully." (Emphasis added.) 391 His Lordship then said of the statements by Moulton LJ in Meters Ltd v Metropolitan Gas Meters Ltd (1911) 28 RPC 157: A proper application of this passage, taken in its entirety, requires the judge assessing damages to take into account any licences actually granted and the rates of royalty fixed by them, to estimate their relevance and comparability, to apply them so far he can to the bargain hypothetically to be made between the patentee and the infringer and to the extent to which they do not provide a figure on which the damage can be measured to consider any other evidence, according to its relevance and weight, upon which he can fix a rate of royalty which would have been agreed … 392 Rares J, who was the third member of the bench in Aristocrat, did not join in the majority's remarks at [26]-[28]. His Honour did not refer to General Tire but he did mention at [95] the speech of Lord Shaw in Watson, Laidlaw & Co extracted above at []. Rares J observed, however, that "the difficulty with this approach in the present case is that the primary basis upon which one could assess a royalty was not laid before the [primary] judge or us". 393 Winnebago was cited with approval by the New Zealand Court of Appeal in The New Zealand National Party v Eight Mile Style, LLC [2018] NZCA 596; 144 IPR 486, a case similar to the present. That case concerned the infringement by the New Zealand National Party of the copyright in the musical work Lose Yourself. The National Party was found to have infringed copyright by using a soundtrack, described as a "sound-alike", called Eminem Esque, in its campaign advertising and promotion. At trial both parties agreed that damages should be assessed on the basis of the user principle: Eight Mile Style, LLC v New Zealand National Party [2017] NZHC 2603. 394 In the National Party case the Court discussed the "well-known analysis" by Lord Wilberforce in General Tire at [27]-[28] and at [29] it approved the summary of principles in Copinger at [21-292], describing it as "a sound description of the artificial construct which is the user principle". Those principles incorporated the following proposition: The fact that one or both parties would not in fact have reached an agreement is irrelevant. 395 The user principle was recently discussed in Lewis v The Australian Capital Territory [2020] HCA 26; (2020) 381 ALR 375 at [82]-[83] by Gordon J and at length by Edelman J at [138]-[149], albeit in the context of an action for false imprisonment. Edelman J referred to numerous authorities including many of those mentioned in Winnebago and Winnebago itself. His Honour explained at [145] that in cases based on the user principle, including cases involving infringement of intellectual property, "the remedy attempts to rectify the wrongful act by requiring payment of an amount that would have made the use lawful". His Honour emphasised that the damages are awarded even if the plaintiff has suffered no actual detriment, including no loss of an opportunity that would have been exercised to license the use of the land, goods, information or intellectual property rights. At [147] his Honour observed that the absence of actual loss in "many of these user principle cases" has caused numerous Australian and English courts to describe the damages as restitutionary. At [148] his Honour said: The best analysis, following Lord Lloyd in Inverugie [Inverugie Investments Ltd v Hackett [1995] 1 WLR 713 at 718; [1995] 3 All ER 841 at 845] is that whilst there is a restitutionary "element" to the award of damages, it should not be seen exclusively in those terms; rather, the award is one manner by which a wrongful act is rectified. It is also wholly independent from the separate award of disgorgement of a defendant's profits. In seeking to rectify the wrongful act, the user fee, which is often calculated by a hypothetical negotiation between a willing licensor and a willing licensee, usually focuses upon both the reasonable value of the wrongful acts to the defendant and their reasonable price to the claimant. As Lord Reed expressed the point more recently, without the user fee award the defendant will be permitted to take "something for nothing, for which the owner was entitled to require payment"[One Step (Support) Ltd v Morris-Garner [2019] AC 649 at 671 at [30]], so that "there is a sense in which it can be said that the damages in those cases 'may be measured by reference to the benefit gained by the wrongdoer from the breach', provided the 'benefit' is taken to be the objective value of the wrongful use". To adapt a famous example from Lord Halsbury, suppose that a person removed a chair from my room for 12 months and locked it in storage. If the absence had no adverse effect on me, perhaps because a colleague substituted an identical spare chair of theirs, then damages would be nominal; despite the deprivation of use, no user claim is countenanced where the defendant obtains no opportunity for use from the deprivation. In contrast, as Lord Halsbury said, user damages are payable if the person "kept it" - that is, took my chair for the opportunity of their own use [Owners of Steamship "Mediana" v Owners, Master and Crew of Lightship "Comet" (The "Mediana") [1900] AC 113 at 117]. (Footnotes omitted.) 396 It follows that it does not matter whether Universal would have licensed WNGTI to Mr Palmer or whether Mr Palmer would have entered into a licence agreement. Either way, Universal is not limited to nominal damages. Rather, damages should be assessed by reference to a notional licence fee. In any case, Aristocrat is distinguishable. In contrast to Aristocrat, Universal led evidence about the circumstances in which it would have granted a licence to Mr Palmer and as to its quantification.

The evidence 397 Evidence about those matters was given by Ms Masters, Mr Eaton, Mr Jenkins, and Mr Richter. Mr Palmer adduced no evidence on the subject. Mr Richter's evidence was given from the perspective of a licensee, the evidence of the others from that of the licensor. While Mr Eaton was asked to assume that the fee proposed by Ms Masters would be AUD 1 million, none of the other witnesses was asked to make that assumption and none of the witnesses saw or heard the other's evidence. Yet their evidence was remarkably consistent. Cross-examination was largely ineffectual. 398 The evidence from these witnesses also established that more probably than not the infringements of the copyright in both the literary and musical works has caused substantial damage to Universal as the copyright owners. 399 Ms Masters has had over 20 years of experience in synchronisation for music publishing, mainly involving placing songs into commercials. Throughout that time she has been involved in the negotiation of licences for the use of music in advertising, film and television. At the time of the hearing she was working on between 50 to 100 commercial advertisements each year. She has worked on a wide variety of licensing projects in the course of which she has had numerous conversations with advertising agencies and obtained feedback from clients. She deposed that the licensing of music in advertising is a key component of Universal's business both in Australia and across the world. UMPG's catalogue contains some three million songs. 400 In her first affidavit Ms Masters explained the value to a licensee of using popular music in advertising: In more recent times, advertisers have used existing popular music, both old and modern, to make their advertisements memorable. Using existing music saves advertisers from the considerable time, skill and expense of trying to create new and memorable music for their commercials. They also use the recognition and popularity of the music in the minds of consumers as a means of making their advertisement more effective. The combination of the music and brand can lead to a powerful association between the two; such an association often lasting longer than the 15 or 30 seconds of the advertisement itself. A long-running advertising campaign can cement the music's association with the brand. The right music can contribute significantly to the success of the advertisement, which in turn should contribute to the success of the product or company being advertised. A good example of this is Qantas' long-running use of the song I Still Call Australia Home. That song was licensed by UMP to Qantas and has been used for about 22 years by Qantas. No other advertiser has since used that song, and I think it is very unlikely that anyone else would want to use it because of its very close association with Qantas. 401 Ms Masters deposed that, in considering whether to grant a licence and, if so, at what price and on what terms, many factors are taken into account. She said that there is no single or standard approach and no scientific method for calculating the fee for use as there are so many variables, some of which reflect the personal opinions of the songwriter or rights owner. In her experience, the following factors are relevant: the value of the music; the current status of the music in the market (such as whether it has been recently released as a single or on an album or is still popular); the purpose for which the music is to be used; the identity of the advertiser; the views of UMP and the songwriter about the proposed use; the value to the advertiser; the creative control UMP would exercise over the use; the media on which the advertisement will be placed; the period of use; the prominence of the music (such as its duration or volume in the advertisement and whether a more or less prominent part of the music is to be used), whether there will be a single advertisement or multiple different advertisements; the territory of use; and any exclusivity. 402 Ms Masters also identified a number of factors which contribute to the value of a particular piece of music. They included: the popularity and commercial success of the music and the artist or band that performed it; and the extent to which the music has previously been used in advertising. Ms Masters said that every licence has "an opportunity cost". She explained that, if UMP licenses a particular piece of music in a nationwide advertisement, it was highly unlikely that another advertiser would want to use the same music because of the association in the mind of the consumer with the first brand. 403 Ms Masters expanded on a number of these matters. 404 She said that the identity and characteristics of the advertiser and the product or service being advertised are critical to both the decision whether to grant a licence and the terms and value of that licence, amongst other reasons because of the implicit association with, or endorsement by, the music, the songwriter and the brand. Songwriters may hold strong views for or against. The nature of the brands, companies and messages may affect the future commercial value of the music. Examples include gambling, tobacco, and politics. The licence fee will increase to mitigate the risk. As for music licensing for political purposes, Ms Masters said it was "very rare". She was unaware that popular music had ever been used in political advertising in Australia. Since politics can be controversial, divisive and very personal, in her experience songwriters and music publishers are very reluctant to become involved in political campaigns for fear of a public backlash. The risk of a public backlash affects the future commercial licensing value of the music. Ms Masters said that, for these reasons, unless there were an alignment of values, it is unlikely that either songwriters or music publishers would approve the use of their music in political advertisements and, if they did, she expected that "a significant fee" would be imposed to offset the commercial risks. Ms Masters acknowledged that in some cases a songwriter's reluctance to allow his or her music to be used in advertisements could be overcome by the imposition of "sufficiently attractive financial terms". 405 Ms Masters deposed that the permission of the songwriter is almost invariably sought before a licence can be finalised, even when UPMG is the owner of the copyright. She explained that this was both good publishing practice and a matter of courtesy. She added that many of UPMG's songwriters have enjoyed a long relationship with the group, that the relationship was one of trust, and that she would not risk it for the sake of a single licensing deal. 406 Ms Masters deposed that UMP and songwriters almost always insist on some degree of creative control over the use of music in advertising in order to protect the future commercial value of the music and its "artistic integrity" as well as the integrity of the songwriter. Ms Masters said that UMP could not licence a re-recording that sounds like the original recording because that would expose the business to a claim from the owner of the master recording which can be an unrelated third party company. For this reason, a licensee who wishes to make a re-recording must make it sound different to the master recording. 407 Ms Masters said that changing the lyrics can jeopardise the integrity of the original song and therefore its future commercial value. In her experience changing the lyrics always increases the licence fee, sometimes to a significant extent. 408 Generally speaking, she said, the broader and more intensive the use of media on which the advertisement will be shown, the higher the licence fee. The same, she added, is true of paid online advertising. 409 Generally, too, Ms Masters remarked, the longer the campaign the higher the licence fee, but short, intense campaigns also attract a premium. 410 It will be recalled that Ms Masters instructed Ms Meuross to provide a quote to Mr Wright of $150,000 plus GST. The evidence was that this was a preliminary quote consistent with Ms Masters' invariable practice. It was her best estimate based on what she knew at the time but it could change depending on further information. She regarded it as "the likely minimum fee for use of the song in the campaign described by Mr Wright". 411 Ms Masters deposed that it was not unusual for further negotiation to take place after "further creative details" were provided and after both UMP and the songwriter had considered the proposed licence. She referred to a case in which the fee finally agreed upon was nearly double that which was originally quoted after "the approval party" saw the way the music was to be used and the term of the licence was increased. 412 Ms Masters considered WNGTI to be a valuable song, one of, if not the, premium song in the Twisted Sister catalogue, with the potential for use in a very broad range of advertisements owing to its "catchy, anthemic sound" and non-specific rebellious message. She conducted a search of the internal database and discovered that it had "a significant licensing history" in other territories. She knew nothing of the UAP and little of Mr Palmer. She googled the UAP and found the Wikipedia entry of the party once led by Robert Menzies of whom her grandmother had spoken fondly. 413 Ms Masters deposed that the quote given to Mr Wright was based on an eight-month term and that the use would be limited to Australia so that the advertisements would be "geogated" or geolocked, which would usually prevent from being accessed by internet users outside Australia thereby protecting future licensing opportunities for the music in other territories. At the time she was unaware of the size and intensity of the advertising campaign or the views of the songwriter, both "very significant factors in the fee for use of the music". 414 Had she thought that either the UAP or Mr Palmer was "particularly controversial", Ms Masters deposed that her initial quote would have been "significantly higher". Given the political nature of the advertising campaign, however, she would have "flagged the request" with Mr Jenkins as the negotiations progressed. While she had noted that the music was to be "a re-recording with local talent" and there was a suggestion of a lyric change to "Australia's not gonna take it", she was unable to "properly quantify" these matters without seeing exactly what was proposed and expected to reconsider the fee once the full creative details were supplied. She said that her quote did not provide for multiple different versions of the advertisement because the information provided by Mr Wright in the request form was "somewhat equivocal". 415 Ms Masters noted Mr Wright's subsequent assurances that the re-recording would be "high quality" and "not a shabby rendition", his proposal to extend the term to 12 months, and his "non-negotiable" refusal to agree to "third party entities" approving the "campaign elements". 416 If Mr Wright had accepted the preliminary quote and provided Universal with creative materials for the proposed advertisement, Ms Masters would have reconsidered the preliminary quote based on those materials before discussing it with Mr Jenkins, sending the materials for consideration to Mr Snider and the relevant UMPG team. She also said that she would have conducted more research into the UAP and Mr Palmer to provide both the US team and Mr Snider with the information they would need to consider the proposal. 417 Since WNGTI is controlled by Songs, she would normally also consult Mr Eaton or a member of his team. 418 She said that this process could result in the request being refused or approved, changes to the proposed use, or an increase in the fee. 419 Ms Masters deposed that her preliminary quote would have been significantly higher if she been given all the relevant information, such as the full creative materials for the advertising campaign, and had she undertaken additional research on the UAP and Mr Palmer. 420 Based on the following matters, her opinion was that a reasonable licence fee for an eight-month campaign and one she would have quoted if she had been aware of all the relevant information, was $1 million (noting it would not be significantly less if the campaign ran for only five months): the controversial and divisive nature of the UAP campaign and Mr Palmer; the high likelihood of damage to the image of the song, the artist and UMP; through association with the UAP campaign and Mr Palmer; the prominent use of the song across 12 versions of the advertisement; the size of the campaign (indicated by the number of versions and the use across all media, including paid advertising, contrary to Mr Wright's indication); the lyric changes; the poor quality of the re-recording and its rendition as a "sound-alike"; and the want of geogating so that the advertisements were accessible overseas, including in the US. 421 Ms Masters' opinion was based not only on her experience in negotiating synchronisation licences but also on her specific consideration of the fees charged for 40 such licences, none of which involved a political party or a highly controversial or risky brand or as many different advertisements or such frequent use over such a wide range of media. Moreover, in each of them UMP had creative control over the use of the music. Few of the licences she specifically considered involved lyric changes. 422 Her opinion on this question was not challenged in cross-examination. 423 Ms Masters deposed that she had never come across a case in which someone had requested a quote to licence the use of a piece of music but had gone ahead without one. She expressed the opinion that no advertiser would want to use WNGTI in Australia for "many, many years" as a result of the unauthorised use of WNGTI in the UAP campaign. She said that it was impossible to quantify the loss of licence revenue to Universal that would follow. But she considered that Mr Palmer's conduct had destroyed its value for advertising and potentially for other uses such as radio and digital downloads. 424 This evidence was not challenged in cross-examination either. 425 Mr Eaton would have accepted Ms Masters' recommendation. His opinion was also unchallenged. 426 Mr Eaton is responsible for the licensing of UMPG's music in advertising in the US and other territories. He has worked for UMPG for over 20 years and has been in his current role since 2016. Throughout his career he has negotiated licences for use of UMPG's songs by a number of multinational companies. He described the purpose of his role as seeking to "maximise the value and financial return of UMPG's music catalogue in advertising". He often liaises with songwriters when considering requests to use their songs in advertising. He said that UMPG and the songwriters want to protect the artistic integrity and commercial value of their songs, so the "manner in which a song is used in an advertisement" is a critical factor in any negotiation over the proposed use of the song and any licence fee. The relevant details he considers include the identity of the advertiser and the brand; the product or service being advertised; the duration of the advertisement; the territory of the use, including whether it will be geo-blocked; and the "creative" components of the advertisement, including the script and any lyric changes. 427 Mr Eaton considered that WNGTI is Twisted Sister's "most well-known and commercially successful song". He described the song as "evergreen" due to its enduring quality and popularity and its message of defiance that is not specific to any era or cause. Mr Eaton deposed that WNGTI has been used in multiple television series, films and musicals and continues to be played "substantially" on radio and on streaming services. He said it has been licensed for advertising purposes around the world on many occasions and that the income earned by WNGTI amounted to approximately 80% of the income earned by UMPG for Mr Snider's entire song catalogue. 428 Mr Eaton said that his immediate impression of the UAP advertisements was that they were "politically provocative". He said that the effect of the negative association between WNGTI and the UAP advertisements is "unpredictable and difficult to quantify", but that an extended advertising campaign would permanently, or for at least several years, alter the perception and value of WNGTI in Australia and possibly in other territories. 429 In considering a hypothetical licence fee, Mr Eaton said he would rely heavily on the advice of the UMPG Australia office given its familiarity with the local market. 430 The political nature of the advertisements would have been a significant consideration for Mr Eaton given the "personal and divisive" effect of politics. He said he would have taken account of the views of Mr Snider and the UMPG Public Policy Team. In cross-examination he accepted that Mr Snider's views would have been important. 431 Mr Eaton also deposed that he would have taken into account the "look and feel" of the advertisements. He considered that the "poor quality" of the UAP advertisements posed a commercial risk to the value of the song. The lyric changes to WNGTI was another factor. He noted that lyric changes "always increase the fee" due to the risk of the revised lyrics becoming associated with the song and affecting the future licensing value of the work. Finally, Mr Eaton considered that the lack of geo-gating would have raised concern due to the risk of damage to the value of WNGTI in other territories. For all these reasons Mr Eaton deposed that he would expect that the licence fee would be "significantly above the usual commercial licence fees" that are common in Australia. 432 Mr Jenkins was also asked for his opinion on a hypothetical licence fee. 433 Mr Jenkins is responsible for UMPG's activities in various territories including Australia, Asia, and Africa. He has been in his current position since 1917. Previously he was Executive Vice-President, Asia Pacific Region, based for nine years in the London office of UPMG. Until June 2017 he was the Chairman of the International Confederation of Music Publishers, the global trade organisation representing the interests of music publishers. He has over 38 years' experience in the music industry. Mr Jenkins was responsible for overseeing UMPG's entire Australian operations, including managing issues that could affect the reputation or standing of the business in the music or wider business community. Although he has never held a position in a synchronisation or licensing team in a music publishing company, he has supervised such teams since the 1990s and in that capacity he acquired a general understanding of the factors relevant to licensing and the market rate for licensing music in advertising. He continues to be involved in licensing decisions both through his supervision of synchronisation teams and his work with songwriters. 434 In Mr Jenkins' experience it is rare for popular music to be licensed for political advertising because of the divisive nature of politics and the concerns of many songwriters not to be seen to be publicly endorsing a particular party or candidate. He saw a number of the advertisements used in the UAP advertising campaign and considered them to be "low quality" and the use of WNGTI to be "derogatory". 435 Mr Jenkins' opinion was that a reasonable licence fee would be "at least" $1 million and it would make no difference whether the licence was for a term of five or eight months. He said that if anything significantly less than that were proposed, he would have been "very reluctant" to approve a licence. In cross-examination he testified that he spoke to nobody before considering or reaching this opinion but had regard to licences upon which he had worked in the past. 436 It seems that the figure of $1 million was reached in part because of his concern about the impact of such a licence on UPMG's broad commercial interests including the prospect that UMP's involvement could detrimentally affect its relationship with Mr Snider, other songwriters and business partners, apparently because of the nature and quality of the advertisements and the use of the song, which he described as "poor" and cheap, and negative publicity attracted by Mr Palmer, in part generated by "the controversy surrounding Mr Palmer's nickel mine". In cross-examination he testified that the view of the songwriter is a significant consideration and, if the songwriter were reluctant to agree, that would lead to a materially higher licence fee. He confirmed that in coming to his opinion on the figure he took into account Mr Snider's views. He agreed that one factor relevant to the negotiation of the fee would be the value of the song. 437 Mr Richter is the founder of a "music supervision" company based in Melbourne. He has over 20 years' experience in the music industry. He negotiates with copyright owners, record companies, and publishing companies to source music for use in advertisements. He said he has been involved in negotiating multiple music licensing deals, including with Universal. 438 Mr Richter was not provided with copies of the affidavits of the Universal witnesses. Yet Mr Richter's evidence was consistent with that evidence and it was powerful as an independent source of corroboration. 439 Mr Richter said that the more well-known and recognisable the song, the higher the licence fee will be. He confirmed the evidence given by Universal's witnesses that, if a song has previously been used by another advertiser, it may acquire an association with a particular brand and cause a "loss of opportunity" cost for copyright holders. 440 Like the other witnesses, Mr Richter reported that political advertising attracts a "significant premium" in licencing negotiations due to the risk that the song and political campaign become closely associated. He confirmed that poor quality advertisements can harm the reputation of a song, and so affect its future licensing value. Like the other witnesses he expressed the opinion that other considerations, including the duration and territory of the advertising campaign, also play a role in licensing negotiations. In cross-examination, Mr Richter said that the benefit to the advertiser is a material factor in determining a reasonable licence fee and the benefit may be commercial or, for example, political. 441 In relation to the question of a hypothetical licence fee, Mr Richter supported the evidence of Universal's witnesses although he was not provided with their opinions. His view was that a licence fee in the range of $750,000 to $1 million would be reasonable. 442 Mr Richter considered that the UAP advertisements would be an "extremely unattractive proposal" for Universal as they posed a "very significant risk to the future commercial value and integrity" of the song but conceded in cross-examination that he had no experience in the use of a copyright song for a large political campaign. 443 In assessing a reasonable licence fee, he referred to the divisive and controversial nature of the UAP campaign and the risk that it would alienate the song's fan base. He also referred to the change in the lyrics, which he considered reduced WNGTI to the level of a "meme", and to what he described as the poor production values of the advertisements. He further considered the breadth and duration of the campaign and the likelihood that the advertisements would "annoy many people". He said that, as far as he was aware, WGNTI had previously been used in any Australian advertising, meaning the song was "fresh" and would therefore likely attract a higher licence fee. He considered that the use of the song in the UAP advertisements would "almost certainly kill the commercial value of WNGTI for use in Australian advertising" for at least a decade and that the copyright holders would likely have "serious misgivings about approving a licence without a very significant fee". Although he did not have experience in the use of a copyright song for a large political campaign, he did have experience of the reluctance of advertisers to use a song which had previously been used in an intense campaign or which was closely associated with another product. 444 While he conceded that it was possible that another advertiser might want to use the song in the near future, despite its use in the UAP advertisements, he said he would be surprised. 445 In cross-examination Mr Richter testified that, if the songwriter was opposed for political reasons to the song being used in a particular way, that would affect the likelihood of the song being licensed, and an increased licence fee would be required to secure approval. But he was unable to comment on the extent to which a songwriter's views would be considered in licensing negotiations in circumstances where a songwriter does not have a contractual right to prevent the licensing of the song. 446 On the question of whether Universal would have granted a licence to Mr Palmer knowing what she now knows, Ms Masters' evidence was that it was unlikely. Mr Jenkins deposed that a request for a licence was likely to have been declined. 447 Nevertheless, Universal denied that they would not have granted a licence to Mr Palmer. They pointed to the following facts. First, UMP is in the business of licensing its songs and has in fact licensed WNGTI on many occasions. Second, UMP entered into negotiations for a licence for WNGTI and it was Mr Palmer who withdrew from the negotiations for reasons of his own. Third, Mr Snider has agreed to lyric changes in the past. Fourth, Mr Snider's views concerning the use to which the song would be put would be taken into account in determining the amount of a reasonable licence fee. Fifth, any commercial risk or disadvantage Universal may have perceived to arise during the hypothetical negotiation process may have made it reluctant to grant a licence but that could have been ameliorated by the imposition of a higher licence fee. 448 It is difficult to know for certain what Universal would have done had Mr Palmer agreed to their terms. I am inclined to think that, once Mr Eaton was consulted, it is unlikely that they would have been prepared to issue a licence at all or at least for a fee Mr Palmer would have been prepared to pay. In any event, the evidence indicates that UMP was unwilling to move on the terms Mr Palmer considered a deal-breaker. 449 For the reasons given above, however, damages can and should be calculated on the basis of a notional or hypothetical licence fee.

How should damages be calculated? 450 The summary of the principles set out in Copinger at [21-292], adopted by the Court of Appeal in the National Party case at [29], relevantly included the following propositions drawn from the English authorities (footnotes omitted): • The hypothesis is that the actual licensor and the actual infringer are willing to negotiate with each other as they are, with their strengths and weaknesses, in the market as it existed at the date of the infringement. Accordingly the task of the court is to assess the value of the use to the defendant, not to a hypothetical person. • However, any impecuniosity on the part of the notional licensee is to be disregarded, as are the personal characteristics of the parties (eg an easy-going or aggressive nature), as opposed to the objective factors with which they were faced. Such matters are not considered to provide any guidance as to what the right is worth. • The fact that one or both parties would not in fact have reached an agreement is irrelevant. • The terms of any notional licence must reflect the actual infringement. Accordingly, where only part of a copyright work has been infringed, the notional licence is a licence to carry out the infringing act and not a licence to use the whole of the copyright work. The period of the licence is the period of actual infringement. Where the infringer enjoyed exclusivity in practice, the notional licence should accord with the reality. Likewise, the licence should permit the infringer to contract with others on the terms on which it actually contracted. • Where there has been nothing like an actual negotiation between the parties, it is reasonable for the court to look at the eventual outcome and to consider whether or not that is a useful guide to what the parties would have thought at the time of their hypothetical bargain. • The court can take into account other relevant factors, and in particular delay on the part of the claimant in asserting its rights. • It is relevant under this head that the defendant could have arrived at the same result by lawful means if the parties can be expected to have taken that fact into account in their hypothetical negotiation. That alternative need not have had all the advantages or other attributes of the infringement. … • In a case within this group, the court may have to call into play "inference, conjecture and the like", and apply "a sound imagination and the practice of the broad axe". 451 Many of these propositions were drawn from the judgment of Arnold J in Force India, which was not disturbed on appeal: Force India Formula One Team Ltd v 1 Malaysia Racing Team SDN BHD [2013] EWCA Civ 780; [2013] RPC 947.

In what sum should damages be assessed? 452 Mr Palmer submitted that, if the Court were to find that the reasonable licence fee is the proper method for calculating damages, the best evidence is the price Universal quoted in negotiations with Mr Wright, namely $150,000 or $160,000. He claimed that at that time Ms Masters knew "most of the facts which are now said to show that a licence in the order of $1 million is appropriate". 453 I reject these submissions. 454 It is true that Ms Masters knew at the time of the negotiations that the song would be used by the UAP, that Mr Palmer was associated with the UAP, and that the song would appear on free to air television, YouTube, and the UAP website. It is also true that Ms Masters accepted in cross-examination that she knew there could be some degree of controversy merely because the song was to be used in a political campaign. Critically, however, Ms Masters' unchallenged evidence was that she knew nothing about the UAP and little of Mr Palmer. She had no idea of Mr Snider's attitude. She was not shown any of the "strong images" that were to be used. And she had not been provided with a proposed, let alone final, storyboard, a recording of ANGCI, or any of the videos. 455 Mr Palmer also submitted that Universal's figures should also be adjusted having regard to the following matters: (1) the fact that each of Universal's witnesses had regard to the fact that the UAP videos were not geoblocked and so were available outside Australia, a factor the NZ Court of Appeal treated as irrelevant in the National Party case; (2) the availability to the hypothetical licensee of alternative options, a factor taken into account by the Court of Appeal in the National Party case; and (3) that some of Universal's witnesses took into account the absence of a quality control provision in favour of the licensor, an approach the Court of Appeal in the National Party case considered illogical. 456 None of these matters was addressed by Universal in their written or oral submissions. 457 I note that in the National Party case, in which the copyright work had been used in political advertising for a period of only 11 days (see Eight Mile Style at [434(e)]), the Court of Appeal reduced the compensatory damages from NZ$600,000 to NZ$225,000 partly because of the limited period but also because the trial judge had erroneously taken into account the above factors. 458 As to the first matter (the regard paid by the witnesses to the want of geoblocking), Mr Palmer pointed out that in the National Party case at [61] the NZ Court of Appeal said that it was difficult to see how the international attention of fans who were not voters in the New Zealand election, and therefore no part of the intended audience, could attract a price in the hypothetical negotiation. The Court held that this was not something for which the National Party, as a reasonable licensee, would wish to pay or something for which a reasonable licensor could demand payment. 459 I am prepared to discount the figures proposed by the witnesses to take out of consideration the fact that the advertisements were not geoblocked. It is unlikely that they would be of interest beyond the Australian voting population. That said, there is no evidence about the weight the witnesses attributed to the absence of geoblocking. None of them were asked how significant a factor it was. 460 Copinger referred to the second matter - the availability of alternative options - in the penultimate dot point mentioned at [451] above. The authorities cited in support of the proposition include Force India at [425] and 32Red Plc v WHG (International) Ltd [2013] EWHC 315 (Ch) at [42]. But as the Court of Appeal recognised in the National Party case at [47], the significance of the availability of alternatives is necessarily "fact dependent". In that case, the campaign committee considered alternative production music but concluded that Eminem Esque was preferable (National Party at [94]). When the National Party decided to change the music, it commissioned alternative music in a matter of days at a cost of $18,990 and that music was used for the duration of the balance of the campaign (National Party at [94]). The Court found at [95] that both parties would have recognised the availability of other musical options which the National Party might explore and held that the primary judge erred in failing to take this factor into account. In the present case, Mr Palmer submitted that it was evident that the UAP might have used other music. Ms Masters suggested Mr Wright consider other options in her last email to him. But what was the alternative in this case? Neither Mr Palmer nor any of his witnesses suggested one and the matter was not explored with Universal's witnesses. In these circumstances, it seems to me that the existence of an alternative should be accepted as a possibility but afforded little weight. 461 I now turn to the third matter, the question of quality control. 462 It is not apparent which witnesses Mr Palmer had in mind in making the submission that a number of Universal's witnesses took into account the absence of a quality control provision in determining a reasonable licence fee. Certainly, neither Mr Jenkins nor Mr Richter appear to have done so and no such suggestion was put to them in cross-examination. 463 Mr Eaton did not expressly take into account the absence of a quality control mechanism in his consideration of a reasonable licence fee for WNGTI. On the other hand, he said that he generally considered details of a proposed use in advertisements including creative materials such as a "a script, any lyric changes, a storyboard or an early or even final version of the advertisement". In providing his opinion on a reasonable licence fee, he did take into account the lyric changes to WNGTI but at the same time noted that Mr Snider had previously agreed to certain lyric changes. 464 But Ms Masters made it clear that she took into account the poor quality of the infringing use. 465 At trial in the National Party case, expert witnesses called by the copyright owner to give evidence about a hypothetical licence fee were asked to make assumptions about the effect on the fee of lack of control and denigration of the original work by the licensed work (see National Party at [106]). The primary judge, Cull J, noted at [330] that "the hypothetical licence will reflect the terms and conditions in fact used", so that "the royalty might be more expensive to compensate for the greater risk to the licensor in licensing without quality control provisions commonly found in actual licences". Her Honour took this from the judgment of Newey J in 32Red Plc. On appeal, however, the Court said at [43] that it was not at all clear that this was an approach endorsed by Newey J. In the National Party case at [97] the Court of Appeal considered it unsurprising that a quality control provision would feature in an actual licence negotiation which envisages prospective licensed use, but held that a provision of this kind could not be effective with respect to a notional licence fee because "the hypothetical user principle" operates retrospectively - after the infringement. At [104]-[105] the Court explained: The hypothetical licence addresses a retrospective and hence a known use. It assumes that the licensor is a willing participant. While we recognise that the licence is an artificial construct, we consider that it is unrealistic to incorporate an assumption about the presence or otherwise of a control provision, the absence of which would serve no other purpose than to elevate the licence fee. We are fortified in that conclusion given that in this case the inability to exercise control said to follow from the absence of a relevant provision is directed to the claimed poor quality of the infringing use. It strikes us as a somewhat perverse outcome that a flagrant infringement in the form of a complete replication of Lose Yourself [the work in question in that case] would not be the subject of complaint by reference to the absence of a quality control provision whereas an inferior copy would generate an increased licence fee. If alleged denigration of the original work is the concern, then in our view a claim for damages under s 125 of the Act [infringement of moral rights] would be a more appropriate recourse than incorporating an uplift to the hypothetical licence fee on account of the absence of a quality control provision in the licence. 466 For these reasons the Court held at [106] that, by making assumptions about both lack of control and denigration of the original work by the licensed work, Eight Mile's expert witnesses inappropriately elevated the hypothetical fee. 467 I propose to follow the National Party case and disregard the question of quality control for the purpose of determining a notional fee. 468 I now turn to the considerations that can and should be brought to bear to determine the notional licence fee. The references to advertisements below are references to the UAP videos to which the UAP recording was synchronised. 469 First, the song is a valuable commodity for Universal. Its popularity has endured over the decades since its original release. 470 Second, the value to Mr Palmer of the use of the copyright works was considerable. As Mr Richter observed, using a popular and instantly recognisable rock anthem gave the UAP videos powerful and far-reaching cut-through. And the lyrics perfectly aligned with the message Mr Palmer wished to convey. 471 Third, the copyright works had not previously been used in advertising in Australia. 472 Fourth, they were used for political purposes by a controversial figure. 473 Fifth, the works were deployed in multiple advertisements and featured prominently in all of them. 474 Sixth, the advertisements were shown frequently throughout Australia and on a variety of platforms including free to air television, the UAP website, YouTube and Facebook. 475 Seventh, the campaign lasted for a period of about six months. 476 Eighth, the notional licence extends only to the chorus of WNGTI, but as I have already discussed, the chorus is a substantial part, both quantitatively and qualitatively, and the song's most memorable feature. 477 Ninth, there is a risk that some people will continue to associate WNGTI with the UAP and Mr Palmer, but I think it likely that the association will diminish over time. 478 I note that in the National Party case at [70]-[71] the NZ Court of Appeal accepted that a higher fee can reasonably be sought for certain types of use which may be seen as likely to have a polarising effect on the community or sections of it and a political use is one such case. But the Court considered (at [72]) that a distinction should be drawn between a type of use which has "an inherent divisive quality", and therefore viewed objectively would warrant a higher fee, and a licensor's subjective reluctance to agree to a licence because the message the subject of the advertisement is not one the licensor personally endorses. It seems to me that this approach is sound. It is consistent with the first factor mentioned by Copinger at [21-292] (see [451] above) and the assumption behind the notional licence, namely that the licensor is a willing party. Since Universal's witnesses all took into account matters which should not be considered in determining a notional licence fee, their figures were excessive. 479 Having regard to all relevant matters and making due allowance for the possibility of alternative options, I assess the notional licence fee and Universal's s 115(2) damages at $500,000.

The governing principles 480 Section 115(4) of the Copyright Act provides that, where an action for infringement of copyright is established and the court is satisfied that it is proper to do so, having regard to certain matters, the court may, in assessing damages for infringement, award such additional damages as it considers appropriate in the circumstances. The matters to which the Court must have regard in determining whether to award additional damages are listed in para 115(4)(b). They are: (i) the flagrancy of the infringement; and (ia) the need to deter similar infringements of copyright; and (ib) the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff's copyright; and (ii) whether the infringement involved the conversion of a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form; and (iii) any other benefit shown to have accrued to the defendant by reason of the infringement; and (iv) all other relevant matters[.] 481 The effect of the subsection is that the power to award additional damages is enlivened by proof of infringement and the court's satisfaction that it is proper to exercise it and the amount is limited only by what the court considers is appropriate in the circumstances taking into account the matters listed in para 115(4)(b). 482 The "flagrancy of the infringement" has variously been described as "scandalous conduct, deceit and such like" and includes "deliberate and calculated copyright infringements" (Ravenscroft v Herbert and New English Library Limited [1980] RPC 193 at 208 per Brightman J) and "calculated disregard of the plaintiff's rights, or cynical pursuit of benefit" (Prior v Lansdowne Press Pty Ltd (1975) 29 FLR 59 at 65 per Gowans J). Clearly, if the infringer held a mistaken belief that he or she owned the copyright in the works or acted in the bona fide belief that no copyright subsisted in the plaintiff's work, the conduct is not flagrant: Polygram Pty Ltd v Golden Editions Pty Ltd (1997) 76 FCR 565 at 575 (Lockhart J). 483 Both Universal and Mr Palmer drew on Aristocrat as a convenient summary of the relevant principles. There, at [40]-[45] Black CJ and Jacobson J made the following points (see, too Rares J at [113]-[116]): (1) Flagrancy is not an essential prerequisite. It is enough that the Court is satisfied that any one or more of the matters listed in s 115(4) are made out. (2) The objectives of an award of additional damages include deterrence and a penal element is involved. (3) Additional damages may be awarded on principles corresponding to those governing awards of aggravated and exemplary damages at common law. (4) The amount of additional damages need not be proportionate to the damages awarded under s 115(2). 484 I have omitted from this summary the authorities to which their Honours referred. One of them was Autodesk Inc v Yee (1996) 68 FCR 391 at 394 in which Burchett J noted in this context that in copyright legislation, at least since the 18th century, the infringer has been regarded as a "pirate" who should be treated accordingly. 485 In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471 Brennan J said that: As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories … The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v. Cassell & Co. "to teach a wrong-doer that tort does not pay". 486 In Lamb v Cotogno (1987) 164 CLR 1 at 9 Mason CJ, Brennan, Deane, Dawson and Gaudron JJ cited this passage with approval. At the same time their Honours observed that the object or effect of exemplary damages is "not wholly punishment and the deterrence which is intended extends beyond the actual wrongdoer and the exact nature of his wrongdoing". In other words deterrence is both specific and general. As Rares J put it in Aristocrat at [116], one of the important purposes of an award of additional damages under s 115(4) is to firmly discourage both the infringer and others from engaging in practices of the kind in which the infringer has engaged. 487 I should note, however, that, although additional damages may be awarded on principles corresponding to those governing awards of aggravated and exemplary damages at common law, the power given by s 115(4) is not constrained by those principles. As White J observed in Luxottica Retail Australia Pty Ltd v Grant [2009] NSWSC 126; 81 IPR 26 at [39], in contrast to additional damages, aggravated damages are not recoverable by a corporate plaintiff and exemplary damages are an exceptional remedy only awarded where the defendant has acted in contumelious disregard of the plaintiff's rights. Hence additional damages have been described as "of a type sui generis": Facton Ltd v Fifai Fashions Pty Ltd (2012) 199 FCR 569 at [36] (Lander and Gordon JJ). 488 The "other relevant matters" with which para 115(4)(b)(iv) is concerned include: the conduct of the defendant with respect to the infringement; the motive for the infringement; the injury to the plaintiff's feelings for suffering insults, indignities and the like; and the plaintiff's corresponding behaviour. See Polygram at 576, citing Beloff at 267 (Ungoed-Thomas J). In other words, the "other relevant matters" include the kind of matters that a court would take into account in awarding aggravated damages at common law, discussed for example in Broome v Cassell & Co Ltd [1972] AC 1027 at 1089 (by Lord Reid) and at 1124 (by Lord Diplock). As Lord Diplock put it in Broome at 1124, "[a]dditional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the defendant did it".

Mr Palmer's arguments 489 Mr Palmer submitted that, for the following reasons, a substantial award of additional damages should not be made: 490 First, neither Mr Palmer nor the UAP derived, or intended to derive, a profit or commercial benefit from the infringements or, for that matter any other benefit. Notably, the UAP did not win a single seat in the election. 491 Second, neither Mr Palmer nor the UAP sought to show an association with the artist or implicitly represent that the use of the copyright works was endorsed by the composer. 492 Third, the infringement was not flagrant or dishonest; Mr Palmer honestly believed that the use was lawful. Consequently, there is a reduced need for deterrence and a finding of infringement alongside an order for compensatory damages will provide sufficient deterrence. 493 Fourth, the behaviour of Mr Palmer and the UAP after the infringing conduct is "of limited relevance" unless there is "a sufficient connection between the infringement and the conduct complained of" and "it is of some relevance" that Mr Palmer's post-infringement conduct was partly responsive to Mr Snider's tweets which were "derisive and taunting". 494 Finally, any deficiencies in Mr Palmer's discovery, a matter upon which Universal relied, are irrelevant to this question, can be dealt with by appropriate costs orders, and such orders have already been made. Besides, Mr Palmer has exceeded his obligations by obtaining reports on advertising usage from various media companies and providing them to Universal's solicitors, waiving legal professional privilege in the process.

Disposition 495 I reject Mr Palmer's submission. This is a case which calls for a substantial award of additional damages. 496 First, Mr Palmer did act in flagrant disregard of Universal's rights. It is true that in cross-examination Mr Palmer claimed that in January 2019 he believed that there was no copyright in the lyrics because the same words had been used in Network and Tommy and in various places he claimed that the music was not copyright because the melody had been used in O Come All Ye Faithful. But I do not accept that Mr Palmer honestly believed at any relevant time that his use of the copyright works was lawful. To the contrary, the objective evidence demonstrates that Mr Palmer actually believed that Universal held the copyright in the works, that he needed a licence to use them, and that he decided to go ahead without one because he was not prepared to agree to Universal's terms. Mr Palmer's conduct was high-handed and contemptuous. 497 Second, Mr Palmer's behaviour after receiving Universal's cease and desist letter was contumelious. He conducted what Universal justifiably described as "a ferocious counterattack", both directly and through the UAP, with the apparent object of deterring Universal from enforcing their rights. He alleged privately and publicly that there was no copyright in WNGTI and maintained the allegation in the first iteration of the defence, only to abandon it 12 months later. He issued an empty threat to sue Mr Snider for defamation. 498 Third, he gave false evidence, including concocting a story to exculpate himself, indicating that the need for both punishment and deterrence is high. 499 Fourth, while there is no evidence that Mr Palmer directly or indirectly derived a profit or commercial benefit from the infringements and the campaign did not reward the UAP with a seat in Parliament, "benefit" within para 115 (4)(b)(iii) is not necessarily confined to a pecuniary advantage or reward. In Polygram at 576 Lockhart J referred to a New Zealand case in which the benefit that would have accrued to the defendant by reason of the infringement was increased circulation of its newspaper where no corresponding tangible financial benefit was established. See also Aristocrat at [44] (Black CJ and Jacobson J). 500 There could be no doubt that Mr Palmer intended to, and did, derive a political benefit from the unauthorised use of the copyright works. 501 It will be recalled that Mr Richter deposed that the use of WNGTI, a popular and instantly recognisable rock anthem, gave the UAP videos powerful and far-reaching cut-through. An article by Shannon Molloy posted on news.com.au, exhibited to an affidavit of Mr Tonkin and admitted into evidence without objection, confirmed as much. The venerable political commentator, Michelle Grattan, was quoted as reporting that tracking research conducted by one of the major parties found that people were singing along with the jingle. In cross-examination, Mr McDonald testified that the UAP advertising campaign "definitely put United Australia Party on the map" and "the jingle" was an integral and invaluable feature of that campaign. He appeared to accept the cross-examiner's description of the tune as "a catchy jingle", volunteered that it was "obvious" that "catchy jingles in other - other advertisements do seem to work", and accepted that there was no reason to think they would not work in political advertising. He conceded, albeit reluctantly, that the use of the jingle was helpful to the campaign. 502 In any event, Mr Palmer avoided the payment of a licence fee. That in itself is a benefit: Halal Certification Authority Pty Limited v Scadilone Pty Ltd [2014] FCA 614;107 IPR 23 at [106] (Perram J). 503 Further, as Universal also submitted, Mr Palmer must have assumed he would obtain a very significant benefit from the use of WNGTI because of the very substantial amount of money he expended on the broadcast and online communication of the UAP videos which incorporated it. While the exact amount he spent is unknown, we do know that the UAP spent $12 million on pre-paid advertising for the broadcast of the UAP videos as at 11 January 2019. Documents produced in response to a subpoena show that the broadcast of the UAP videos on Channel Nine alone cost approximately $1.9 million. And documents belatedly discovered by Mr Palmer show that the UAP videos were broadcast 18,649 times, amounting to more than 20% of the total number of broadcasts authorised by Mr Palmer. As Mr McDonald conceded in cross-examination, the advertising "definitely put [the UAP] on the map"; it raised the party's profile and got people talking. 504 Sixth, the unauthorised use of WNGTI was deeply upsetting to Mr Snider. While the statements made by Mr Snider and Mr French on social media and the publicity that this proceeding has attracted may have set the record straight, it is reasonable to think that at least some of Mr Snider's fans may not have seen the publicity. 505 Seventh, both before and during the proceeding, Mr Palmer taunted, mocked and derided Mr Snider in both mainstream and social media, perhaps for his own amusement but doubtless to attract publicity for himself and/or the UAP. During the course of the hearing he appeared on Sky News falsely accusing Mr Snider of having admitted in evidence to copying from O Come All Ye Faithful. This accusation had the potential to cause considerable harm to Mr Snider's reputation. When questioned by the Court on the subject Mr Palmer claimed, in effect, to having been misinformed by "our media guy". In the absence of corroboration, I take this claim with a grain of salt. In any event, he offered no apology either to the Court or to Mr Snider for the misrepresentation and, as Universal submitted, he gave the distinct impression that he was indifferent to the truth. Uploading the Cameo video to his social media accounts was obviously intended to ridicule, if not humiliate, Mr Snider. 506 Eighth, Mr Palmer's approach to his discovery obligations is not irrelevant. 507 Universal cited only one authority for the proposition that Mr Palmer's "failures in discovery and his resistance to further discovery" should be taken into account as falling within s 115(4)(b)(ib). That was Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd (No 2) [2008] FCA 746; 76 IPR 763 at [17]. But Mr Palmer relied upon it for the contrary proposition. 508 In Futuretronics at [17] Besanko J agreed with Goldberg J in Flags 2000 Pty Ltd v Smith [2003] FCA 1067; 59 IPR 191 at [45]-[46] that a distinction is to be drawn between conduct relevant to the substantive allegations made against the respondent and conduct relating to procedural matters and that conduct of the latter kind is "more appropriately dealt with by an appropriate order for costs". 509 The distinction between conduct relevant to the substantive allegations and conduct relating to procedural matters can be difficult to draw. In Truong Giang Corporation v Quach [2015] FCA 1097; 114 IPR 498, a trade mark infringement case, Wigney J referred (at [138]) to Flags 2000 and Futuretronics but said that it was hard to see why some aspects of a respondent's conduct in defence of infringement proceedings might not be relevant to the award of damages. Indeed, his Honour considered that: Conduct of the proceeding which involved high-handedness, dishonesty, recalcitrance, or flagrant disregard of, or deficiencies in compliance with discovery orders or notices to produce might, at the very least, suggest a greater need for an award of additional damages that would deter future infringing conduct by the respondent". (Emphasis added.) See, too, Geneva Laboratories Limited v Prestige Premium Deals Pty Ltd (No 5) [2017] FCA 63; 122 IPR 279 at [83] (Bromwich J). 510 I respectfully agree. There is no reason why a different approach would be required in a copyright infringement suit. Section 126(2) of the Trade Marks Act 1995 (Cth) is in substantially identical terms to s 115(4) of the Copyright Act. 511 In Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589; 29 IPR 236 at [58]-[59], for example, Kenny J took into account deficiencies in discovery in awarding additional damages in an infringement case involving copyright in a design. That case was cited with apparent approval by Gilmour J in Facton at [69]. 512 In Facton, too, at [44] Lander and Gordon JJ considered that the respondents' conduct after the proceeding was commenced and during the proceeding should be taken into account "much like it would for an award of aggravated damages in a defamation case" and referred to the fact that it was "only at the last minute that the respondents acknowledged their wrongful conduct" and denied infringement until then. 513 In the present case, discovery was ordered by Robertson J on 6 November 2019. That order required the discovery of documents recording or evidencing, amongst other things, the extent to which the UAP advertisements were broadcast and communicated and the costs incurred by Mr Palmer and the UAP of doing so. Mr Palmer's response was that a third party held those documents. On 15 September 2020 Universal filed an interlocutory application seeking an order for further discovery, arguing that discovery in these respects was deficient and that they had been misled by the response and forced to pursue third parties by subpoena which confirmed those deficiencies. The application was supported by an affidavit of Mr Tonkin filed on 15 September 2020. Universal also filed detailed submissions in support. 514 Mr Palmer did not take issue with Universal's submissions. On the return date for the interlocutory application he capitulated. He agreed to the orders sought including costs. He filed no affidavit explaining his failure to discover the documents. 515 Nor, apart from challenging their relevance to additional damages, did Mr Palmer take issue with the submissions Universal made at the end of the hearing on this question. Those submissions were based on Mr Tonkin's evidence. In the absence of a contest, I accept the submissions. 516 In the week commencing 28 September 2020 Mr Palmer discovered and produced numerous documents. They included a large number of invoices, including invoices issued to the UAP, relating to the broadcast of advertisements incorporating the UAP recording and videos by a number of radio and television networks; email correspondence dating back to late May 2019 disclosing the extent of the UAP's advertising on major television networks which incorporated one or more of the UAP videos; and some 1,588 payment receipts for the UAP's advertising on Facebook. 517 There is no dispute that this material was within the scope of the discovery order made on 6 November 2019. Universal's submission was that, in all the circumstances and especially given the absence of any proper explanation, the Court should infer that Mr Palmer's failures in relation to discovery were deliberately calculated to frustrate Universal's efforts to ascertain the full scope of his infringing activities. This submission went unanswered. I conclude that there was no answer and the inference Universal asked the Court to draw should be drawn. 518 Before completing this discussion I should also mention that Mr Palmer relied on Eight Mile Style in which no award was made for additional damages and the fact that the findings in this regard were affirmed by the Court of Appeal: National Party at [141]-[151]. On this subject the National Party case does not assist Mr Palmer. 519 Although there were some obvious similarities between the two cases, there were also some startling differences. For a start, the advertising and media consultants engaged by the National Party to produce the advertisements used in the election campaign sought and received assurance that the music in question did not infringe copyright and was free to be used. Moreover, two days after it received a cease and desist letter from the copyright owner/exclusive licensee (and a week after the first of the election advertisements aired), the National Party decided to replace advertisements to which the infringing music was synchronised. In the result, the offending advertisements were only broadcast for a total of 11 days. It seems that the claim for additional damages was based only on the fact that the National Party failed to seek legal advice to determine whether there was a risk of copyright infringement. In rejecting that claim, the primary judge, Cull J, noted (at [453] and [455]) that the National Party had sought the copyright work from a professional company which specialised in production music for sale, took advice from experienced professionals in the fields of advertising and music licensing in relation to the use of the relevant track, and obtained a synchronisation licence. Her Honour held (at [456]) that the actions of the National Party did not demonstrate flagrant or intentional infringement, contumelious or total disregard for the plaintiffs' rights, or conduct that was so bad it ought to be punished. 520 In their cross-appeal the appellants argued that the National Party could be said to have gained a significant benefit by effectively obtaining the use in political advertising of a compulsory licence of the copyright in Eminem Esque against the will of the copyright owner and this should sound in an award of additional damages. They also argued that the National Party's decision to use the track without contacting the copyright owners or their agents to seek a licence or check whether Eight Mile might object and without seeking legal advice evinced reckless indifference to the possibility of infringement warranting an award of additional damages. In endorsing the decision of Cull J to refuse additional damages, the Court of Appeal reviewed the evidence said to amount to reckless indifference and held that the proposition that the National Party turned a blind eye to the risk or recognised the risk but embarked on a reckless course of conduct was "not sustainable". Further, while the Court of Appeal did "not rule out the possibility that additional damages might be awarded in respect of an intentional and particularly cynical use of a work in an inappropriate way", it did not consider the National Party to have behaved in that way (National Party at [150]). 521 The conduct of Mr Palmer was strikingly different from that of the National Party. 522 Any award of additional damages must be sufficiently high to operate as a deterrent: Australasian Performing Rights Association Ltd v Monster Communications Pty Ltd [2006] FCA 1806; 71 IPR 212 at [202] (Rares J), citing XL Petroleum at 472 (Brennan J). The amount will obviously vary having regard to the means and circumstances of the individual infringer. As Pagone J observed in Pacific Enterprises (Aust) Pty Ltd v Bernen Pty Ltd [2014] FCA 1372; 321 ALR 715; 109 IPR 481 at [15], in relation to the cognate section of the Patents Act 1990 (Cth), an amount which may be an effective sanction for an infringer with limited means may be ineffective as a sanction or deterrent for a wealthy infringer or potential infringer. 523 The evidence discloses that Mr Palmer is a man of immense wealth. It is an agreed fact that his 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. 524 Nevertheless, courts traditionally approach an award of damages with caution: Polygram at 577. And, although damages need not be proportionate to the amount of damages awarded under s 115(2), it is relevant to consider whether they are sufficient to serve the relevant purpose: see, for example, Aristocrat at 571-2. In this case I am certain that they are not. 525 Having regard to all relevant matters, I would award additional damages of $1,000,000.

Other relief 526 Universal sought the following additional relief: 1. A declaration that the UAP Recording and the UAP Videos each contain a reproduction of a substantial part of each of the Musical Work and the Literary Work. 2. A declaration that [Mr Palmer] has infringed [Songs of Universal's] copyright in each of the Musical Work and the Literary Work by: a. reproducing; b. authorising the reproduction of; c. communicating; and d. authorising the communication of a substantial part of those works in Australia without the licence of the Applicants. 3. An order that [Mr Palmer], whether by himself, his servants, agents or otherwise be permanently restrained from: a. reproducing; b. authorising the reproduction of; c. communicating to the public; and d. authorising the communication to the public of the whole or a substantial part of the Musical Work or the Literary Work in Australia without the licence of the Applicants. 4. An order that [Mr Palmer] take all necessary steps to: a. cause any and all reproductions of the UAP Recording, including the UAP Videos and any other video or audio recording that embodies the UAP Recording, to be removed from all online locations controlled by [Mr Palmer] or the United Australia Party (including on the websites YouTube and Facebook); and b. cause the communication of the UAP Recording, including the UAP Videos and any other video or audio recording that embodies the UAP Recording, (including in advertisements for the United Australia Party) to cease. 5. An order that [Mr Palmer] deliver up to the Applicants all unauthorised reproductions of the Musical Work or the Literary Work, including the UAP Recording and UAP Videos, in his possession, power, custody or control. 527 It is beyond doubt that the Court has the power to make these orders. 528 In matters in which the Court has jurisdiction, s 23 of the Federal Court of Australia Act 1976 (Cth) gives the Court the power to make such orders as it thinks appropriate. The power to grant injunctive relief is expressly mentioned in s 115(2) of the Copyright Act and a delivery-up order is an equitable remedy regarded as ancillary to an injunction restraining the use or sale of infringing goods or works the purpose of which is to remove from the infringer "a source of temptation": Meagher RP, Heydon JD and Leeming MJ, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (4th ed, 2002) at [27-050]; Mergenthaler Linotype Co v Intertype Ltd (1926) 43 RPC 381 at 382 (Russell J). See also Muddock v Blackwood (1898) 1 Ch 58 (Kerewich J) and compare Rosedale Associated Manufacturers Ltd v Airfix Products Ltd [1956] RPC 360 in which an order for destruction of infringing designs was made. In ACHOS Pty Ltd v Ucorp Pty Ltd (No 5) [2013] FCA 1006; 103 IPR 51, where orders were sought for the delivery up and destruction of the infringing works, Jessup J observed at [7] that orders of this kind "would be a conventional, and commonplace, remedy to be granted at the conclusion of a successful copyright action". In Hole v Bradbury (1879) 12 Ch D 886 at 903 Fry J said there was "distinct authority" in favour of the view that the power to make an order for the delivery up for destruction of infringing works in a copyright case derived from the general jurisdiction of the Court and referred to the numerous patent and trade mark infringement suits in which orders of this kind were made. See also Lahore at [36,345] where Lindgren et al make the point that the remedy is not confined to cases in which actions are brought under s 116 of the Copyright Act for conversion or detinue. 529 Neither the power of the Court to make orders of this kind nor, with the exception of the claim for injunctive relief, the discretion to exercise the power in Universal's favour, was identified as an issue in the parties' agreed statement of facts and issues. Perhaps it was for this reason that in their written submissions Universal only addressed damages and merely noted their claim to the additional relief sought in the originating application. Similarly, although he had ample opportunity to do so, Mr Palmer did not address any of these matters, including the claim for injunctive relief, either in writing or orally. On the subject of relief, both the written submissions and the oral argument were confined to damages under s 115(2) and 115(4). In these circumstances, I take it that Mr Palmer accepted that the orders Universal sought were appropriate, or at least not inappropriate, in the event that Universal established infringement. 530 In the absence of any submissions on the question or evidence to suggest that the additional relief should not be granted, I propose to exercise my discretion in Universal's favour. I should make it clear, however, that I am also satisfied that the orders Universal proposed are appropriate. In particular, I am satisfied that, if unrestrained by an injunction, there is a real risk that Mr Palmer would again infringe Songs' copyright in the literary and musical works. No undertaking not to do so was offered to the Court. A claimant who establishes infringement of copyright is normally entitled to a permanent injunction to restrain future infringements (Copinger at [21-229]). There was no suggestion here of any disentitling conduct.

Conclusion 531 In summary, there is a sufficient degree of objective similarity between the copyright works and the impugned works such that the latter are properly to be regarded as reproductions or adaptations of the former and that the infringing works were taken or derived from the copyright works. Mr Palmer failed to make out his defence under s 41A of the Copyright Act. It follows that Mr Palmer infringed Songs' copyright in both the literary work and the musical work. 532 Damages under s 115(2) of the Act can and should be assessed in accordance with the user principle. I consider the appropriate amount to be $500,000, representing the value of a notional or hypothetical licence fee for the use of the copyright works during the period of the infringements. Universal has also established a case for additional damages which, having regard to all the relevant circumstances, I have assessed at $1,000,000. 533 Finally, the other orders Universal sought should also be made. They include a permanent injunction in the terms Universal proposed. I certify that the preceding five hundred and thirty three (533) numbered paragraphs is a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.

Associate: Dated: 30 April 2021 ANNEXURE We're Not Gonna Take It Daniel Dee Snider We're not gonna take it No, we ain't gonna take it We're not gonna take it anymore We've got the right to choose and There ain't no way we'll lose it This is our life; this is our song We'll fight the powers that be, just Don't pick our destiny 'cause You don't know us; you don't belong We're not gonna take it No, we ain't gonna take it We're not gonna take it anymore Oh, you're so condescending Your gall is never ending We don't want nothin', not a thing, from you Your life is trite and jaded Boring and confiscated If that's your best, your best won't do Whoa, oh oh Whoa, oh oh We're right (yeah) We're free (yeah) We'll fight (yeah) You'll see (yeah) Whoa, whoa We're not gonna take it No, we ain't gonna take it We're not gonna take it anymore We're not gonna take it No, we ain't gonna take it We're not gonna take it anymore Whoa, oh oh Whoa, oh oh We're right (yeah) We're free (yeah) We'll fight (yeah) You'll see (yeah) We're not gonna take it No, we ain't gonna take it We're not gonna take it anymore We're not gonna take it (no) No, we ain't gonna take it We're not gonna take it anymore (just you try and make us) We're not gonna take it (come on) No, we ain't gonna take it (you're all worthless and weak) We're not gonna take it anymore (now drop and give me twenty) We're not gonna take it (a pledge pin) No, we ain't gonna take it (on your uniform) We're not gonna take it anymore