Ep 25 – The third in our mini-series analysing Palmer vs Universal. Covering my bold predictions for the outcome of the court case, and the “Golden Rule” of sound-alikes. Please contact us if you need help with music searches or licensing songs for advertising campaigns, or just want to chat about music and advertising. We would love to hear from you! About anything really.
You’ll find the full transcript below:
Hi there, just back from the Melbourne Cup lunch where I won a motser, as they say. Anyway, back to Clive Palmer versus Universal Music in the federal court in front of judge Anna Katzmann. Episode 25 of the Music Licensing VLOG, and another one where I’m looking at my cracker court case commentary. If you watched episode 23, you would’ve already seen the Clive Palmer TVC, which Universal are alleging breach the copyright of Twisted Sister. First, I want to give a credit to the Sydney Morning Herald who’ve been doing wonderful coverage of this case day by day. Of course, they’re doing it for the average person in the street, and I’m trying to provide commentary for people on the border of music and advertising, like the VLOG says, “I’m doing it for you and me.”
How about a bit of hyperbole to begin? If Clive Palmer wins this case, it could have enormous repercussions for the music industry and the advertising industry. Theoretically, it could mean that you could record a cover version, a soundalike, anything you want, and not have to pay for it. I think it’s unlikely, but technically possible. But I guess it would depend on how Clive wins. If it’s just a narrow technical interpretation of a particular situation, then it probably won’t make much different. But if it’s a broad vindication of Clive’s right to do whatever he wants, then it could have enormous ramifications. Could be the end of the world as we know it. And without knowing how the case ends, how Justice Katzmann rules, I’m going to make three bold predictions.
Firstly, Clive will lose, and secondly, in complete contradiction to number one, Clive is going to realise that he’s going to lose, and he’ll settle on the steps of the courthouse before he loses. I really hope it doesn’t work out like that, because then once again we’ll be robbed of a case study, some case law that we can look at. And thirdly, another alternative prediction, if Clive wins, then Universal will fight this music copyright case all the way to the high court. They’ve got too much to lose here to back off altogether. Okay, finally, let’s get to day one of the court case. In his opening address, Universal Barrister laid some groundwork. He told us that it was a big song, part of the rock Pantheon. Now there’s a word, Pantheon. I really like that one. And duh, knew it was a big song. I guess he’s got to lay some foundations along the way before he gets into it.
Then we get to one of the most critical points in the whole case, at least for you and me. Mr. Flynn the Barrister alleged that Palmer’s representatives approached Universal asking to use the song, but then they took the song because Universal put some prerequisites on the table that they didn’t like, so they took it without paying for it, allegedly. I imagine that probably meant the prerequisites were that Universal wanted to review and approve the advertising creative before it went ahead, and Clive didn’t want to do that. And maybe the cost of the song was a prerequisite as well. I guess you could call it that. Clive probably didn’t like that, either.
So they broke the Golden Rule. We always say to our clients that if you are planning to record anything that is even remotely similar to an existing song, then do not ask us to request a licensing quote for the song. That’s just about the worst thing you can do, because A, you put it in writing that you’re interested in the song. It’s like a smoking gun, I guess. And B, you put the music suppliers on hyper alert that you are interested in that song, so of course they’re going to be watching to see what you do.
Here’s an analogy. I like an analogy. It’s like going to a real estate open house, a house for inspection, and looking at all the expensive artwork on the walls, asking the person how much it’s worth, getting your photo taken, writing down your name, leaving your business card, and then coming back late that night, breaking in and stealing all the artwork. Of course you can probably expect a visit from the police. I’m not even up to the end of the prosecution’s speech, and already I’ve gone too long. Keep the video short, as Clare keeps telling me, so I guess I better end it there. I’ll see you later. Come back for more next time.
bruce at musicmill.com.au
Credit: the opening and closing sequences feature “Strong Hands” from Ben Catley:
The song: https://soundcloud.com/bencatley/stro…
About Ben: open.spotify.com/artist/66OGdUyXn2WSipn6ZYq7id
Disclaimer re copyright and fair use: https://www.musicmill.com.au/fair-use/