Foo Fighters box on with Australian copyright claim

Foo Fighters’ Dave Grohl, Taylor Hawkins, and Nate Mendel (the Applicants) clearly take copyright in their songs more seriously than they take themselves (for non-fans, they are renowned for playing hilarious characters in Foo Fighters’ film clips).

Now, the Federal Court is experiencing its own touch of celebrity, with Fast Track proceedings launched by the Applicants against real estate company RE/MAX Australia Franchising Pty Ltd, and RE/MAX International Inc (the Respondents). The Applicants claim copyright infringement, passing off, and breaches of sections 52 and 53 of the Trade Practices Act. The proceedings, which relate to two RE/MAX advertisements uploaded onto the RE/MAX website and YouTube, reportedly came about after a Foo Fighters fan commented online that the Respondents were “using the riff from [Foo Fighters’ song] Learn to Fly…”

The Statement of Claim asserts that the relevant advertisements “incorporate a musical composition … that reproduces a substantial part” of Learn to Fly. The “substantial part” claimed to have been reproduced is, together or separately, the first eight bars, the three bars at the end of the chorus, and the section at the end, of Learn to Fly.

The question of causal connection is also said to be satisfied by the context of the advertisements, which, according to the Statement of Claim, involve people skydiving, or “put another way, people ‘learning to fly’”.

The Applicants have not sought injunctive relief as the relevant advertisements have been taken down and the Respondents say they won’t be used in future. Instead, the Applicants seek, among other things, declaratory relief; delivery up of all infringing copies; and damages or an account of profits.

If the Respondents are found liable, the question of quantum may not be as straightforward as in last week’s Kookaburra decision (6 July 2010 see here). In Kookaburra, the court applied a licence-fee approach, directing its inquiry to the “hypothetical bargain that would have been struck between a willing licensor and a willing licensee …”. In that case, Down Under had become a best selling single and it was indisputable that the owner of Kookaburra would want its share of the proceeds.

Here, however, it is unclear whether – if asked – the Foo Fighters would have licensed use of their song to RE/MAX. The “licence fee” approach is usually only regarded as appropriate if it can be proved that the Applicants might have granted a licence to the Respondents had it been sought. Once this threshold is satisfied, debate will then ensue over the amount of the fee.

This is not the first time the Foo Fighters have responded to use of its songs in advertisements – in 2008 they sued Marvel Studios for copyright infringement in relation to two songs used in a TV trailer. They also complained in 2008 about John McCain’s use of a Foo Fighters’ song as part of his US Presidential campaign.

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