Are expert witnesses (musicologists) helpful if you go to court? Not if they cancel each other out. Plus final closing arguments from both sides. The case now rests.
You’ll find the full transcript below:
So here we are almost at the end of the year and almost at the end of this music licensing video blog mini-series on Universal suing Clive Palmer for infringement of Twisted Sister’s copyright.
Today we’re going to look at two things. One of them is the expert witness evidence butting heads with each other from both parties. And the second one is the closing argument.
So first of all, the expert witnesses. Now, I’ve always thought, and I’ve always said to our clients that expert witnesses aren’t really the answer here, musicologist. It really comes down to what the average person in the street would think. Do they think it’s a rip-off of the song? If so, then you’re likely to be in big trouble. But of course, when it goes to court, everybody wheels out their big guns, the musicologist, the expert witnesses. And in this music copyright case, which I think is probably fairly typical, the expert witnesses completely disagreed with each other.
Now, the focus was on, weirdly enough, Mariah Carey’s version of ‘O Come All Ye Faithful’ from her Christmas album way back when. I’m not sure when. Now, if you’d been following this mini-series, you would know that Clive Palmer has accused Twisted Sister of simply copying ‘O Come All Ye Faithful’, which is in public domain, which is a fairly strong argument. He might win the case based on that. So they decided to have a look at Mariah Carey. Here’s what the experts had to say. Mr. Palmer’s expert witness was Dr. Robert Davidson from the University of Queensland School of Music. He basically gave evidence that Twisted Sister’s song is closer to ‘O Come All Ye Faithful’ than Mariah Carey’s direct cover version. He said that he was not talking about superficial similarities, but the melodic contours, including interval. Now, I’m sure the average person in the street would be very concerned about those melodic contours and how close they were.
Universal’s expert was Dr. Andrew Ford, presenter of ABC Radio National’s The Music Show and a regular expert in music copyright cases. So if he gets to appear often, he must know what he’s talking about. And he said, surprise, surprise, that Mariah Carey’s version was much closer to the original hymn. In his words, Mariah Carey’s version was encrusted with embellishments, rather like a ship’s hull might be covered in barnacles. There you have it, barnacles might win the day.
So what’s the point of the expert witnesses? They both bring the expert music witnesses in and they completely disagree with each other. Well, the point is, if only one side brings them in, then they look like they know what they’re talking about and the other guys know nothing. So they both bring them in, they completely disagree with each other and we’re no further forward, really.
So let’s get to the closing arguments on day six of the copyright infringement case. I mean, it was basically a rehash of what’s happened over the previous five days, but there were some highlights there. Patrick Flynn again has a go at Clive saying that he gave intentionally dishonest evidence, that he was toying with the court. And he said, “This is the worst case of flagrant copyright infringement in Australian cases to date,” and Mr. Palmer should pay Universal more than a million dollars.
And then the barrister for Clive Palmer, Mr. Edmund Robinson, said what we would expect him to say. He said, “The lyrics and music of ‘We’re Not Gonna Take It’ are not original, therefore, he can’t have infringed copyright.” And he said, “Simply repeating an unoriginal phrase does not make it original.” Good point.
So what do we think is going to happen? Look, on the face of it, it certainly looks like Clive blatantly ripped-off the song. I mean, an average person in the street would think that is the case. But then if you look more closely at his arguments about ‘O Come All Ye Faithful’ and about the lyrics not being original, maybe he will win. It wouldn’t actually surprise me if he did win.
So this is the end of the mini-series. We’re going into Christmas. The verdict will come down sometime next year, and I’ll obviously make a video blog about that. As soon as it comes out, you’ll be the first to know.
So for now, Merry Christmas and a Happy New Year from me, Clare and Spike. Say goodbye, Spike. Goodbye, goodbye. Merry Christmas. Goodbye.
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.
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/