Love is in the Ear – Federal Court of Australia finds copyright infringed by the sound of lyrics sung

On 24 April 2020, Justice Perram of the Federal Court of Australia gave judgment in relation to a copyright dispute concerning the iconic Australian pop-hit classic, Love is in the Air, finding that a substantial part of the song had been copied by a US pop-duo, Glass Candy, and by France’s national airline, Air France, as part of its international marketing campaign.

Despite establishing that the song had been copied, Perram J upheld only a few of the Applicant’s several claims, finding that the infringing works had been made available for download in Australia from a US website and, in the case of Air France, played as hold-music on its toll-free Australian call-line.

The decision highlights the importance of identifying at the outset of any copyright proceeding:

  • What rights do I have in the musical work?
  • What infringing acts has defendant performed?
  • What remedies are available?

This is particularly important in a musical context where exclusive rights may have been assigned and/or exclusively licensed to publishers and various collecting societies over the years and where technologies play an important role in determining which rights are in play.

In this love-themed instalment of IP Whiteboard, we unpack Perram J’s decision in Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535.  Stay tuned throughout; we promise it’ll be worth it.

Relevant players

The Applicants in the case were:

  • Mr Vanda (who, along with the late Mr George Young, composed “Love is in the Air”);
  • Ms Young (the daughter of the late Mr George Young);
  • Boomerang Investments (the successor-in-title to the original publishers of the work); and
  • Australian collecting societies, APRA and AMCOS (who were joined to the proceedings when it became apparent that the other Applicants might not have the relevant standing to sue).

The Defendants were Mr Padgett and Ms Monahan (together the musical duo Glass Candy), Kobalt (the Australian publisher of the alleged infringing work “Warm in the Winter”), and Air France.

Love is a battlefield

The dispute at the centre of the case concerned three songs:

  1. Love is in the Air” (Love), composed by Mr Vanda and the late Mr George Young Sydney in 1977, and popularised by the recording of John Paul Young;
  2. Warm in the winter” (Warm), composed by Mr Padgett and Ms Monahan , in Portland, Oregon sometime after May 2008 which features the sung line “love’s in the air”; and
  3. France is in the Air” (France), an adaptation of Warm composed and recorded by Glass Candy in the US around 2014 for use in Air France’s international marketing campaign which ran from 2015 to 2018. France features both “France is in the air” and “love’s in the air” as sung lines.

Copyright infringement is made out when it is proved that a substantial part of an original copyright work has been reproduced and/or that reproduction has been published / made available online. The Applicants’ central claim was that:

  • both Warm and France contained a substantial part of Love; and
  • by making the songs available for streaming and download in Australia and, in the case of France, playing it as hold-music to customers on Air France’s toll-free Australian line, Glass Candy and Air France committed acts of copyright infringement.

At the outset, Perram J notes his surprise at the Applicants’ decision not to pursue a claim in relation to the principal act of making the original recordings of Warm and France (i.e. the original reproduction that had to be made prior to the making the songs available for streaming and download in Australia).  His Honour observed that such a suit would likely need to be brought in the US (the location where the infringement occurred) and that this may have been unappealing to the Applicants given Glass Candy’s entitlement under US law to demand a jury trial (not to mention the cost of US court proceedings!).

As it transpired, the decision to pursue this strategy proved damaging – although not fatal – to the success of their case.

Where is the Love?

In assessing whether Warm and France were infringing reproductions of Love, Perram J follows the three-step analysis set out in EMI v Larrikin Music Publishing Pty Ltd [2011] FCAFC 47:

Identify the work(s)

Justice Perram found that the sound of the opening line “Love is in the Air” being sung in Love formed part of the musical work.

In this respect, he noted that written words/lyrics perform two functions in a song; first, as bearers of meaning (i.e. as a literary work), but also as instructions to the singer to make the sounds denoted by words, in much the same was that sheet music instructs a violinist to play certain notes.

Given this, Perram J concluded that the opening line “Love is in the Air” as sung formed part of the musical work Love.

In reaching this conclusion, Perram J was careful to note that it is not John Paul Young’s performance of the line that is relevant (this forming part of the sound recording in which a separate copyright inheres), but the lyric as part of the instrumentation or orchestration comprising the musical work.

Identify the part(s) said to have been taken

The second step in the analysis required consideration of whether the sung lines and music in Warm and France were objectively similar to the sung line in Love and, if so, whether there was a causal connection between the two.

On the question of objective similarity, Perram J was guided by the evidence of expert witnesses in finding that the line in Warm would be regarded as objectively similar to that in Love by the ordinary reasonably experienced listener, notwithstanding minor differences in style and accompanying instruments. Perram J also found objective similarity with France, noting that adaptation to the word “France” was of little importance. Justice Perram did, however, reject the Applicant’s claim that the longer musical couplets found in Love (“Love is in the air, everywhere I look around / Love is in the air, every sight and every sound’) were objectively similar to the corresponding musical couplets in Warm (“Love’s in the air, whoa-oh / Love’s in the air, yeah’), citing clear melodic and rhythmic differences.

On the causal connection, Perram J found Glass Candy’s evidence on the iterative process of creating Warm (which it claims took place in 2005 or 2007) to be inconsistent and conveniently framed so as to foreclose documentary evidence indicating that Mr Padgett had heard and knew of Love from at least as early as 2008. While Perram J accepted that the phrase “Love is in the air” was a common English expression, he noted that this did not account for the objective similarities in the melody and phrasing of the line. Given this, and the unreliability of Mr Padgett’s evidence, he concluded that Warm had been composed in 2008 and that there had been deliberate copying.

In relation to France, the evidence showed that the advertising agency engaged by Air France to produce its campaign had concurrently sought to obtain a licence from the Applicants for the use of Love while also engaging Glass Candy for its use of the adapted Warm. Accordingly, Justice Perram not only concluded that France had been copied from Warm by Glass Candy, but also that Air France had deliberately caused France to be made so as to copy the sung lyric from Love (removing any question of innocent infringement and establishing flagrancy).

Determine whether the part(s) taken constitutes a substantial part

On the final step, Perram J had little difficulty in finding that the sung line “love is in the air”, although short, was, in qualitative terms, “the essential air of the song” and therefore a substantial part of the work.

Stop! In the name of Love

As noted above, the Applicants chose not to plead that the creation of Warm and France were infringements by Glass Candy and Air France. Instead, they built their case around the following alleged acts of infringement:

Streaming or downloading from platforms

The Applicants alleged that Glass Candy and the Australian publisher of Warm, Kobalt, had made Warm available for streaming and download in Australia via online music platforms (e.g. iTunes, Spotify, Google Play) and/or authorised the platforms to perform such acts. The Applicants also alleged that Air France had made France available for streaming in Australia via YouTube.

As a preliminary step, Perram J found, through a protracted analysis of assignments and licensing arrangements, that the rights in relation to streaming were held by APRA and the rights in relation to digital downloads were held by Boomerang and AMCOS.

As to actual merits of the claims, Perram J found that Glass Candy did not themselves directly stream or make available the songs via the platforms. Furthermore, he found that the platforms could not have infringed these rights as they held blanket licences from APRA and AMCOS in respect Love (including reproductions of a substantial part thereof, i.e. Warm and France). As such, Glass Candy could not be said to have authorised infringement when there was no primary infringement to be found.

Authorising downloads from IDIB website

The Applicants further alleged that Glass Candy had authorised the downloading of Warm by Australians from the websites run by IDIB. In this instance, Perram J found that both Boomerang Investments and AMCOS had standing to sue and that websites, unlike the platforms, could not rely on blanket licences.

As a result, Perram J found that Boomerang and AMCOS were entitled to injunctions, with Boomerang also entitled to damages or an account of profits, and a hearing on additional damages given the flagrancy of the copying. Notably, while the evidence indicated that Warm had been downloaded in Australia a grand total of 13 times over the period of 2011 to 2018, Perram J hinted that additional damages may not be so modest if assessed on a foregone licence basis.

Playing France as hold music to Australian toll-free callers

Finally, Perram J found that the playing of France was indeed an infringement of the communication right, although found that this right had been assigned to APRA. As such, Boomerang did not have standing in relation to this claim and APRA was only entitled to an injunction restraining use of France in this manner.

You give Love a bad name

In addition to the copyright claims, Mr Vanda and the late Mr George Young asserted a moral rights claim on the basis that France involved a material distortion/alteration to Love that was prejudicial to their honour or reputation. While Perram J found that alterations to Love were indeed capable of being prejudicial to honour, he concluded that the claim was barred by reason of s 195AX of the Copyright Act which provides that acts outside Australia cannot infringe an author’s moral rights.

Life after Love?

While the Applicants were able to establish infringement in principle, the Applicants’ (or more accurately, Boomerang’s) case was in many ways hindered by its lack of standing and the preference to fit the facts to their case strategy (not vice versa). One expects that Boomerang will now turn its focus to recovering additional damages at a further hearing.

Key Takeaways

  • Clearly map out all the aspects of one’s claims before considering infringement proceedings, particularly in the context of musical copyright where exclusive rights are often carved up between various different stakeholders and different technological processes can trigger different exclusive rights (e.g. streaming v. downloads).
  • Undertake due diligence when procuring music for any use, particularly for use in an international marketing campaign. Care should be taken not to express a preference for music that has the sound or feel of a particular song as this may give rise to claims to infringement down the road (and additional damages for flagrancy where the preference is in writing).