Universal Music Publishing Pty Ltd v Palmer [2020] FCA 1472 - the 'Twisted Sister' dispute - is of interest to copyright and procedure scholars.
The judgment notes
[1] This is a case about copyright infringement. It arises out of the alleged use by the United Australia Party (UAP) during the last federal election campaign of a substantial part of the music and lyrics of the song “We’re Not Gonna Take It”. The undisputed evidence is that the song was composed and written by Dee Snider, the lead singer of the American heavy metal band, Twisted Sister. While the respondent, Clive Palmer, initially disputed the applicants’ copyright, agreed facts filed in the proceeding include the facts that copyright in the song is held by the second applicant, Songs of Universal, Inc. and that the first applicant, Universal Music Publishing Pty Ltd is the exclusive licensee. Evidence has been filed disclosing that inquiries were made of Universal Music Publishing on behalf of the UAP, of which Mr Palmer is the registered officer, about licensing the song for a “re-recording with local talent”, that Mr Palmer declined to pay the licensing fee, and that he went on to authorise or arrange the production of a recording of “Aussies Not Gonna Cop It” and videos which incorporated it. Mr Palmer denies that the recording and videos use a substantial part of the Twisted Sister song. He also raises a defence of parody or satire. ...
[3] On 7 October 2020 Mr Palmer filed an interlocutory application seeking orders that the trial be vacated and that the costs of the application be the parties’ costs in the cause. The application was supported by an affidavit sworn by Mr Palmer’s lawyer, Sameh Morris Iskander. The application was fixed for hearing yesterday. That day an amended interlocutory application was filed seeking in the alternative to the vacation of the trial an order that any cross-examination and re-examination of Mr Palmer and the parties’ oral closing arguments take place on a date to be fixed. ...
[5] At the hearing of the amended interlocutory application both sides presented written submissions and spoke to those submissions. At the conclusion of the argument I refused the application with costs and, after Mr Palmer’s barrister informed the Court that he required reasons, indicated I would give my reasons today. These are those reasons. ...
[7] The proceeding was fixed for hearing on 4 December last year. At that time the expectation of the Court and the parties was that the hearing would take place in court in Sydney. Then the COVID-19 pandemic struck. Initially, this Court, like most Australian courts, took the precaution of deferring hearings in non-urgent cases. But the Court quickly adapted to the crisis by using digital technology to provide virtual hearings.
[8] My preference and that of the parties was always for an in-person hearing. But the Court has the power to order that any testimony be given by video link, audio link or other appropriate means: FCA Act, s 47A(1). While certain conditions must be satisfied before the power is exercised (see s 47C), it was no part of Mr Palmer’s argument that these conditions were not satisfied in the present case.
[9] On 7 July 2020 my chambers contacted the parties to seek their views on whether an in-person hearing was essential or appropriate. Both sides indicated that it was their “preference”. Universal’s lawyers all live in Sydney and all but three of their witnesses live in NSW. Universal noted that two of their witnesses were located in the United States. Given the international travel restrictions then in place, they informed the Court that any cross-examination of those witnesses could be conducted through Microsoft Teams, the platform the Court had been using and continues to use to conduct hearings during the pandemic. One of Universal’s witnesses lives in Victoria. Mr Palmer and all his other witnesses are based in Queensland. So are his lawyers. On 20 July 2020 Mr Iskander notified the Court that Mr Palmer agreed with Universal’s proposal, “subject to any mandatory national travel restrictions”.
[10] On 7 September 2020 I informed counsel for the parties that I had not yet obtained approval for witnesses to give evidence in person and the Court’s position was that there were to be no witnesses from interstate. On that occasion Mr Palmer’s then counsel, Edmund Robinson, was justifiably concerned that his client would be disadvantaged if Universal’s lawyers and some of their witnesses were able to appear in person but Mr Palmer and all of his witnesses could not. I concluded that there were two options available to the Court: adjourning the hearing or conducting it entirely remotely through Microsoft Teams. Mr Palmer embraced the first option. Universal vigorously opposed it. Through his counsel, Mr Palmer raised no objection, however, to a purely remote trial. The parties then conferred on a remote trial protocol. The protocol was agreed on 1 October 2020. ...
[13] In his submissions advanced by new counsel only recently briefed, Mr Palmer claimed that at the time of the last case management hearing he did not appreciate the extent to which his credibility was in issue in relation to his primary defence that the recording and videos said to infringe Universal’s copyright were made for the purpose of parody or satire. He claimed that he only appreciated this when he read Universal’s outline of submissions on 1 October 2020. He pointed to three matters. The first was the argument that the defence should be rejected, amongst other reasons, because Mr Palmer did not intend a parodic or satirical purpose when he authorised the creation and exploitation of the recording and videos or, to the extent that the recording and videos had such a purpose, that purpose was “either a pretence for, or has been supplanted by an ulterior, political purpose”. The second was the submission that Mr Palmer knew of Universal’s copyright in the musical and literary work when he exploited it. The third was that he deliberately intended to discourage Universal and Mr Snider from enforcing their rights. He pointed out that the first two submissions are directly contrary to Mr Palmer’s evidence in chief that his purpose was parodic and satirical and that he did not believe that Universal owned copyright in “We’re Not Gonna Take It”. ...
[15] Mr Palmer argued that, in circumstances where issues of credit arise, it is in the interests of justice that the trial be adjourned until witnesses may give evidence in person. He submitted that the interests of justice are served by ensuring that “the highest quality evidence is put before the court” and in-person assessment of witnesses and cross-examination is “critically important” when credit is in issue. Relying on Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 at [78], he contended that in such a case “evidence should be given in the solemnity of a court room, before a judge and under the rigors of cross-examination” and “litigants should not lightly be deprived of the forensic benefits that attend the cadence and chemistry between physically proximal bar, bench and witness box”. He acknowledged that these matters had to be balanced against any prejudice occasioned by the adjournment but submitted that there was no such prejudice. ...
Katzman J appears to be unimpressed by some of the arguments, with the judgment stating
[27] Second, there can be no doubt that Mr Palmer would have been aware that his credit was likely to be an issue in the proceeding from the outset. Universal’s claims include one for additional damages. Universal pleads that Mr Palmer knew that a licence was required to use both the musical and the literary work in the advertisements because his agent applied for a licence but, despite the fact that a licence was not procured, he reproduced and/or authorised the reproduction and/or communication to the public of a substantial part of that work. Universal also pleads that he ignored Universal’s requests that he cease doing so. At a case management hearing on 27 July 2020 Mr Flynn SC on behalf of Universal told the Court that Mr Palmer’s credit “may be an issue” “on the additional damages type questions”.
Accordingly
[28] Mr Palmer’s claim that he did not appreciate the extent to which his credibility was in issue is not supported by evidence. Mr Iskander is silent about the subject. In those circumstances his submission to that effect is entitled to little, if any, weight. In any event, it is difficult to see how Mr Palmer could have been unaware that his evidence as to his purpose was likely to be called into question. Mr Palmer has long been required for cross-examination. The second and third matters upon which counsel relied were raised in Universal’s statement of claim. And in its reply, filed on 20 March 2019, Universal denied Mr Palmer’s defence that the incorporation and reproduction of the musical and literary work was for the purpose of parody or satire and asserts that it was for the purpose of political advertising. ...
As to the procedural issue -
[32] ... This year I have presided over a number of cases in which witnesses have been cross-examined using the Microsoft Teams platform. While I was initially sceptical about the effectiveness of cross-examination in this way, my scepticism proved to be unjustified. It transpired that I had no difficulty assessing credit or demeanour. In fact, my experience was that changes in facial expressions, reactions, bodily movements and gestures are much easier to discern when the witnesses are pinned to the screen directly in front of me than is normally the case when witnesses give evidence from the witness box some distance from the bench. In this respect my experience is not unique. Lee J made similar observations in Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504 at [33]. So did Perram J in Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 at [19]. See also Tetley v Goldmate Group Pty Ltd [2020] FCA 913 at [16] (Bromwich J).
