That song you copy and broadcast on social media, the music you use at a public function, or the anthem you use at a political rally can land you in big trouble with music copyright laws and cost you a hefty sum.

Clive Palmer sued for music copyright infringement

In 2019, Clive Palmer used the Twisted Sister 1984 hit We're Not Gonna Take It during his United Australia Party rallies and advertising. Mr Palmer thought if he used the same tune but changed the lyrics to Aussies Not Gonna Cop It, he would avoid having to clear copyright with the US heavy metal band. It wasn't so.

Universal Music sued Mr Palmer on behalf of the band. In April 2021 the Federal Court found Mr Palmer had infringed copyright and the millionaire political aspirant was ordered to pay $1.5 million, along with Universal Music's legal costs. (See Universal Music Publishing Pty Ltd v Palmer [2020] FCA 1472.)

Universal Music's conditions for using song

The court heard that Universal Music had told Mr Palmer they wanted $150,000 to use the song "subject to writer approval". Twisted Sister front man and songwriter, Dee Snider, told the court that being associated with Mr Palmer was "not good for my heavy metal image".

Mr Palmer unsuccessfully argued that his use of the song was satire. Under the Copyright Act 1968, this argument could potentially have provided him with a loophole. This is because the Act provides exceptions to use copyrighted material in what is called "fair dealing", which applies to research or study, criticism or review, and parody or satire.

The problem was Mr Palmer wasn't satirising anything with his version of the song. The judge ordered Mr Palmer to pay $500,000 for use of the band's song, plus $1 million in damages.

Music copyright laws in Australia

Under the Copyright Act 1968, the creator of an original work, be it music, art, or literary, is protected from unauthorised copying that takes possible income or reward away from the creator.

Section 31 of the Copyright Act states that copyright applies to reproduction and copying of the work, performing it in public and also adapting the work. It lasts for 70 years after the death of the creator.

In Australia, copyright protection is automatic - there is no need to register it. Copyright starts the instant a work is put into material form, such as being written down or recorded.

Make sure you clear copyright usage before using music or a literary work

The huge award handed down to Twisted Sister should be a warning to anyone who uses music or literary works for a public purpose without ensuring they have cleared copyright usage.

It's a lesson not just for Clive Palmer, but also for anyone who broadcasts a song on social media, performs a community play, backdrops an ad with a song, or uses any copyrighted material.

While a copyright holder may choose not to charge a school for a play, or charge a charity to use a song, it's always best to check. You can learn more about the use of music in schools on the Music Rights Australia website and the Smartcopying website.

Interestingly, songs can be played at weddings without copyright permission. However, a videographer may have to pay licence fees if they broadcast a video with music publicly on social media to promote their business. You can learn more about music copyright for videographers on the Music Rights Australia website.

Iconic Aussie band, Men At Work, encounters copyright problem in music industry

As one famous Australian band discovered, you must get copyright permission even if you only use a few seconds of a song.

In 2010, the band members of Men at Work were shocked when the Federal Court ruled they had to pay five per cent of royalties they made from their 1980s hit song Down Under.

It was found they had breached music copyright by using a brief flute riff similar to the 1934 song Kookaburra sits in the old gum tree. (See Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29.)

Severe consequences for music copyright infringement

There are hefty penalties for copyright infringement. They range from injunctions, damages and costs, through to fines of up to $60,500 for individuals and up to $302,500 for corporations, along with a possible five years in jail. This is for each offence.

Before you play a song in public, it's wise first to seek legal advice and ensure you have the original creator's permission.

Anneka Frayne
Intellectual property
Stacks Law Firm

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