The Court of Appeal ruling and his critics suddenly championing free speech has left the creator of the famous Planet Key video baffled and asking, who's being satirical now?
It started with a song and a Facebook post and has ended with a baffling court decision, one that seems to have little connection to where we began. Frankly, the whole Planet Key episode has been a very expensive exercise for everyone involved – both the taxpayers and plaintiffs – just to establish a definition of free speech and our right to exercise it.
Back before the 2014 election, Darren Watson created a song called Planet Key and put a request out on Facebook to see if anyone would be willing to create a video for it. I messaged him, offering my services and soon began work on an animated video.
I have know Darren for over 25 years and share a similar personal view of New Zealand’s political landscape and was quite excited about hearing his song. After some correspondence and a few samples of my animated concept we agreed to share 50/50 any money generated from songs sale on iTunes to help recoup costs of recording and work on video. A couple of months later – August 3 2014 - the song was uploaded for sale on iTunes and the video to both Vimeo and youtube.
The response to the song and video was greater than either of us had anticipated. In the next 17 days the views on both Vimeo & youtube totalled over 250,000 and the song peaked at number five on the New Zealand singles chart, despite no radio airplay.
That was driven in part by the Electoral Commission, which for some reason threatened to prosecute us, generating a storm of publicity.
The Electoral Commission gave us a deadline of 5pm, 20 August 2014 to remove the song from sale on iTunes and to remove the video from all online platforms or risk police prosecution and a fine of up to $40,000. We could have avoided this threat by registering as third party advertisers and having a promoters statement, including the "promoter's" address visible on video and audible in song. But this would have also meant allowing the Electoral Commission access to both of our bank accounts for three years. Seems an unprecedented demand on a song writer and a video maker.
Planet Key - both the song and video - expressed my and Darren's personal views, and although it was expressing our views of life on Planet Key, it was never an advertisement. Unlike an ad, the song itself was the product; not an ad for some other product or service. I've never heard of an advertisement being available for sale, have you? So that made no sense to us.
For Darren and me, this is and always will be just a song with some accompanying pictures available for sale, like any other commercially released music. We weren't promoting anything.
Which is why it's funny that I heard later John Key had asked about hiring my services. I don't know if he was serious, but when an acquaintance of mine met Key at a function some time after the video and told the then-Prime Minister that he knew me, Key said he liked the work and wondered whether I might do some for the National Party.
I responded by saying I could not afford to be paid for doing any work for the National Party.
For us, it seems the Crown, in the form of the Electoral Commission, made a lot of assumptions leading up to its ruling that the song was somehow an electoral advertisement and/or a political broadcast.
Whatever motivated the Commission to take this action is open to speculation. However, I expect it never anticipated Darren and I to challenge this ruling in the High Court and they would have been safe in this belief had it not been for the generous support of others. Our lawyers, Wendy Aldred and Jason McHerron, represented us pro bono and others helped us fund our court costs through PledgeMe and by attending or performing in a fund raising concert in Wellington.
In our first case, Clifford J. ruled the song and video were neither a political broadcast nor an electoral advertisement. Which was our argument from the beginning. So we were somewhat surprised to later find the Crown was appealing this decision. Now, I am unsure how the Appeal Court upheld our ruling but in turn interpreted this to mean anyone could place a paid political advertisement.
What's next, paid protestors?The trouble I have with this ruling is we both did this as a personal expression and in the hope of making a few dollars selling a song. In the end, the Commission’s actions did for that. But now it seems the door has been opened for people to buy the artists and creative voices - those that don't usually volunteer their services for right wing causes. Third parties who might have struggled to get this sort of voice before can now pay for it to serve their own self interest and increase their influence. For me, the Court of Appeal’s interpretation of the ruling that now makes it legal for individuals to fund a political agenda against any political party is baffling and has very little to do with our argument or case. My hope, forlorn or not, is that it isn't used as a precedent for people wanting to run attacks ads.