In its recent judgment (Boomerang Investments Pty Ltd v Padgett (Liability)  FCA 535), the Federal Court of Australia has found that an American electronic musical duo copied the celebrated Australian disco song ‘Love Is In The Air’. The decision confirms that the sound of lyrics as sung forms part of a musical work. Furthermore, a short sung lyric with attending music can be the ‘essential air’ of a song.
While determining only “modest” levels of copyright infringement occurred and dismissing most claims for damages, Justice Perram described the copying as “flagrant” and indicated there will be a further hearing to assess damages.
Harry Vanda and George Young composed ‘Love is in the Air’ (Love) in 1977. Love shot to the top of the Australian charts that year and re-emerged in the 90s as the theme song of Baz Luhrmann’s award winning film Strictly Ballroom.
At the outset of the case, Boomerang Investments Pty Ltd (Boomerang), owner of the Vanda and Young back catalogue, claimed to be the owner of the copyright rights in Love. Boomerang contented that:
- the song ‘Warm in Winter’ (Warm) composed in around 2008 by American duo Glass Candy (made up of Johnny Padgett and Lori Monahan) reproduced a substantial part of Love; and
- an adaptation of Warm called ‘France is in the Air’ (France), created by Glass Candy for Air France’s 2015 – 2018 international marketing campaign reproduced a substantial part of Love.
Glass Candy denied having heard of Love before creating Warm and argued the songs were not objectively similar.
Mr Vanda and the estate of the late Mr Young also claimed that the alteration of the lyric ‘love is in the air’ to “France is in the Air’ in France infringed their moral rights of integrity of authorship, which is the right not to have a creation subjected to “derogatory treatment”. Simply put by Justice Perram, this is the right of a creator not to have their work “shabbily treated”.
Justice Perram determined that:
- the sung lyric and music accompanying the line ‘love is in the air’ in Love is an original and essential part of the song;
- the sung lyric and music accompanying the line ‘love is in the air’ in Warm and ‘France is in the air’ in France are objectively similar to the sung lyric and music accompanying ‘love is in the air’ in Love; and
- Glass Candy consciously and deliberately copied that portion of the musical work in Love. Air France did the same with France. In both cases, copying was flagrant, giving rise to the possibility of an award for additional damages.
However, Boomerang’s choice to “target for its infringement allegations acts performed by streaming services” became “ensnared in the legal briar bush which is the APRA and AMCOS blanket licences”, causing most of the damages claims to fail.
Originality and substantiality
Copyright in the lyrics of a song is separate to the copyright in the musical work. To that end, Justice Perram affirmed that the sound of the words being sung is part of the instrumentation of the musical work.
The distinction between words as meaning and sung lyrics is demonstrated by the enjoyment we can derive from a song that is in a language we do not understand. This distinction means that in Love, the phrase ‘love is in the air’ is both a lyric carrying meaning of the ubiquitous nature of love and an original non-literary phonetic instruction to a vocalist to use the human voice as an instrument.
Justice Perram concluded that the music including the sung lyric ‘love is in the air’ in Love (featuring a minor third drop on the fourth of the five notes) was a short but essential part of ‘Love’ from a qualitative perspective, which is also qualitatively significant because of its repetition in the song.
However, since the literary work contained in the lyric ‘love is in the air’ is a commonplace expression that nobody owns, it is not sufficiently original such that it could be regarded as a substantial part of Love.
The test of substantial reproduction involves listening to and comparing the sounds of the copyright work and of the infringing work. For the works to sound similar, they do not have to be identical on a note-by-note comparison.
Applying this test, Justice Perram found that the sung line ‘love is in the air’ in Love and accompanying music in Warm would be regarded by the ordinary listener as objectively similar to the sung lyric and music in the first two lines in each of the four verses in Love.
In doing so, Justice Perram accepted expert evidence that the pace, rhythm and tone of these lines of the songs are the same, although acknowledged that the same melody and structures feature in a lot of modern dance style music. Minor differences (including the use of different instruments) and the difference in genre of the songs were not significant in light of the total impression of similarity.
Analysis of the objective similarity of other comparable aspects of the songs (eg. longer musical couplets) did not result in the same finding of objective similarity.
As France was copied from Warm, the musical component of ‘France is in the air’ was found to be objectively similar to Love too. The slight change in sound resulting from the replacement of the word ‘love’ with ‘France’ did not alter the overall impression of similarity.
Conscious and deliberate copying
As previously mentioned, Justice Perram accepted that the line ‘love is in the air’ is a common English expression which has been used by many artists over the years.
But the chances of Glass Candy using the same set of vocal instructions and line as in Love by sheer coincidence was seen to be very remote. Mr Padgett’s inconsistent evidence to the contrary could not be accepted and rather indicated he was a witness prone to “make up elaborate evidence when it suits him”. Justice Perram determined that that Glass Candy knew of Love before creating Warm, since Mr Padgett referred to Love in emails and the song was played around Glass Candy sets. The combination of features taken was also not routine or commonplace. In addition, the earliest recording of Warm was entitled ‘Love is in the Air’ with the vocal line ‘love is in the air’ in its chorus, suggesting deliberate copying took place.
Evidence also suggested that the Music Creative Director (whose role it is to understand music) of the advertising agency Air France engaged had attempted to negotiate the use of Love and Warm in Air France’s advertising campaign. Justice Perram resolved that the advertising agency deliberately and consciously used Warm because it contained the critical sung line ‘love is in the air’ to the same melody as in Love. As Air France gave the advertising agency the function to obtain all appropriate licenses for intellectual property used in its campaign, it must have imputed the advertising agency’s knowledge in performing (or not performing) that function.
Why did the claims only partly succeed?
Although copyright infringement in respect of Love was established in principle, many of the claims failed as a result of the way the case was pleaded.
It was not contended that Glass Candy’s initial act in 2011 of making a recording of Warm in the United States was an infringement of copyright in Love. Justice Perram speculated that this might have been a strategic decision to avoid the complications arising from the potential application of US law. Rather, Boomerang’s copyright claims were framed as follows.
Streaming or downloading on online music platforms
Firstly, Boomerang argued that Glass Candy, or the publisher of Warm in Australia (Kobalt), infringed its copyright in Love by:
- making Warm available for streaming or downloading in Australia on online music platforms (e.g. YouTube, ITunes, Spotify); or
- authorising the online music platforms to distribute their songs in Australia.
If established, the act of streaming in Australia infringes the owner’s right to communicate a copyright work to the public whereas the act of downloading infringes the owner’s right to reproduce a copyright work.
As alluded to above, this claim failed. Justice Perram found that Boomerang was not the owner of the communication right comprised in the right to digitally stream Love and therefore had no title to sue Glass Candy. This right to digitally stream Love was held by the Australasian Performing Rights Association (APRA) which had been assigned to APRA before the alleged infringement occurred. Even though APRA had been substituted as a party suing for infringement in the suit, as Boomerang (and not APRA) was explicitly identified as the only party which suffered damage, Boomerang’s claim for damages was dismissed.
By contrast, Justice Perram found that Boomerang was the owner of the reproduction right comprised in the right to digitally download and therefore had title to sue Glass Candy. The assignment to APRA did not include the right to make copies of Love (including digital downloads). However, after 2016, the Australasian Mechanical Copyright Owners Society (AMCOS) held an exclusive licence to authorise persons to make copies of Love by means of digital downloads.
There was no doubt that Glass Candy could not be directly responsible for the acts of streaming and downloading Warm from online music platforms, since it did not operate these websites. Nor was Glass Candy the online music provider’s customer in the instance of the actual act of download.
The online music providers could not be liable for infringement since they had permission from APRA and AMCOS to stream and make available for downloading Love and therefore a substantial part of Love which was copied in Warm. Glass Candy could also not have authorised any infringement since no act of actual infringement took place.
In Justice Perram’s view, the correct act of infringement “seemed to occur by communicating Warm to” the online music services and that “each time thereafter the streaming service raised revenue by streaming or downloading Warm, that was evidence of the damage suffered by the Applicants or the profits made by Glass Candy”.
The attempt to make Kobalt responsible also failed because Kobalt’s collection of Australian royalties from Warm was not sufficient to make it liable for secondary infringement and Kobalt was not the owner or licensee of the relevant rights.
Downloading from websites
Secondly, Boomerang claimed that Glass Candy authorised Mr Padgett’s U.S. publishing company to infringe its copyright in Love by operating two websites which allowed customers to download copies of Warm in Australia.
This claim succeeded. As detailed above, both Boomerang and AMCOS had title to sue in relation to downloading. Unlike in the case of the online music platforms, the website operator did not have permission from Boomerang to authorise downloading of Love or from AMCOS who had an exclusive licence of the same right. Glass Candy authorised those downloads because it was aware the songs were being made available for download on these websites.
As a result, Justice Perram found that Boomerang and AMCOS were entitled to injunctions restraining Glass Candy from permitting downloads from these sites. Only Boomerang was entitled to damages or an account of profits (as AMCOS did not claim damages) and would be heard on additional damages since the copying was flagrant.
Justice Perram foreshadowed that although he found relatively low instances of infringement, the damages award might not be so modest, as it could be argued that they should be assessed on a foregone licence basis.
Lastly, Boomerang claimed that Air France infringed its copyright in Love by:
- making France available for streaming in Australia on YouTube; and
- playing France as the hold music on its Australian toll free contact number.
The claim in relation to digital streaming of France failed since (as explained above) YouTube held an APRA license which permitted the streaming of Love (and therefore the substantial part of Love which was copied in the commercial).
The claim in relation to hold music succeeded, but Justice Perram found that only APRA had title to sue Air France. Boomerang was not the owner of the communication right comprised in the right to play Love as telephone hold music as this right had been assigned to APRA before the alleged infringement occurred.
Consequently, APRA was entitled to an injunction to restrain Air France from using France as its telephone hold music (but did not claim damages). Boomerang claimed damages but had no title to sue.
The moral rights claim failed on the basis that it is not an infringement of a creator’s moral right in respect of a work if the relevant act of infringement occurs outside of Australia. It was not alleged that the alteration of the lyrics in France occurred in Australia or that an electronic copy was somehow imported into Australia with Air France’s reasonable knowledge that its making in Australia would infringe the creator’s moral rights.
However, Justice Perram stated that he would have found the act complained of to have constituted an infringement of the artists moral rights not to have their works subject to “derogatory treatment” if the act had occurred in Australia. This is because ‘love is in the air’ was the central lyric in the most valuable song Mr Vanda and Mr Young had ever composed and they rarely (if at all) agreed to change its lyrics. The change of the lyrics could objectively constitute a “material alteration or distortion” of Love which was prejudicial to the honour of Mr Vanda and Mr Young (though not their reputation, since it was a “quite classy” ad in Justice Perram’s view).
Noteworthy sung lines can form part of a musical work which is protected by copyright. While the copying of commonplace motifs and building blocks in music may not normally constitute copyright infringement, the taking of an original musical work which is an essential part of the entire song may.
In this case, although copyright infringement was established only few instances of copyright infringement were found to have transpired. The “odd result” (as Justice Perram branded it) underscores the necessity of identifying both the correct rights owner and act of copyright infringement in litigation.
Further insights will be gleaned after the parties are heard on costs.
- APRA collects royalties on behalf of artists for the communication of their works to the public (providing licences to businesses who need these services) and usually takes an assignment of copyright from the owner to do so.
- AMCOS collects royalties on behalf of artists for the use of their works in film, TV and downloading (providing licences to businesses who need these services) and usually takes an exclusive licence from the owner to do so.