The national director of Clive Palmer's United Australia Party has admitted in court it was misleading for the then-politician to claim he was a lyrical "composer" after he was accused of using the Twisted Sister hit We're Not Gonna Take It in political advertisements without permission.
James McDonald gave evidence on Wednesday in the Federal Court battle between Universal Music, which holds the copyright in the 1984 anthem, and his boss Mr Palmer, who used a cover version of the song in a string of political advertisements before the 2019 federal election.
Clive Palmer, inset, said he did not need to pay to use a reworked version of the Twisted Sister song in his political advertisements.
In the United Australia Party's twist on the hit, the famous "We're not gonna take it" chorus became: "Australia ain't gonna cop it, no Australia's not gonna cop it, Aussies not gonna cop it any more."
Universal Music wrote to the party on January 3, 2019, and demanded it stop using the Twisted Sister song, for which Mr Palmer had not negotiated a licence or paid a fee.
The party responded on January 8 and told Universal Music We're Not Gonna Take It was a "RIP-OFF", in capital letters, of the 18th century Christmas carol O Come, All Ye Faithful and Universal's assertion it held the copyright in the musical work was "questionable".
On the separate issue of copyright in the lyrics, known as a literary work in copyright law, the United Australia Party wrote: "As you are aware the lyrics used in our party advertisement were composed by Mr Palmer and he owns the copyright for the lyrics."
Under cross-examination by Universal's barrister, Patrick Flynn, SC, Mr McDonald agreed it was misleading to say the lyrics of the Aussies Not Gonna Cop It song were composed by Mr Palmer when his efforts involved taking the chorus of We're Not Gonna Take It and making some changes.
"You don't ordinarily send misleading letters, do you?" Mr Flynn asked.
"No," Mr McDonald replied.
"Did you send this letter that you've agreed is misleading … because that was the language Mr Palmer gave you?" Mr Flynn asked.
"Um, yes," Mr McDonald replied.
Asked if the United Australia Party paid more than $10 million to broadcast the "Aussies Not Gonna Cop It" advertisements, Mr McDonald said: "I couldn't be sure that it was that figure, no."
But the United Australia Party told Universal in a second letter in January 2019 that it had "already prepaid over $12,000,000 for the future broadcast" of the advertisements and it would suffer damages of over $12 million if a court granted an injunction to stop them being aired.
Asked by Mr Flynn if it was better from a political point of view for the party to keep the advertisements on air and "pay damages later if necessary", Mr McDonald said: "It was better not to have our … campaign impacted in that way".
Twisted Sister frontman Dee Snider, who wrote We're Not Gonna Take It, gave evidence on Tuesday that he had realised years later that he had transformed the first six notes of O Come, All Ye Faithful into the chorus of his hit song, but the "key word" was "transformed".
It was a matter of unconscious "inspiration, not duplication", he said.
Later on Wednesday, the court was shown emails in which video producer David Wright, who was working on the campaign advertisements, sought a licence to use We're Not Gonna Take It. In one document, Mr Wright said "ideally the original words" would be used, but "perhaps Australias [sic] not gonna take it etc".
"You wouldn't negotiate on behalf of Mr Palmer for a licence that he didn't need?" Mr Flynn asked Mr Wright.
"No," Mr Wright said.
The court heard Mr Palmer used the alias "Terry Smith", attached to a Yahoo email address, in some correspondence with Mr Wright.
The hearing continues.
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