Category: Copyright

1
Air France restrained from using song that infringes “Love Is In The Air”
2
Proposed copyright reform in Australia – Limited liability scheme for use of orphan works
3
Can’t “Shake It Off” Yet: Court Denies Taylor Swift’s Motion to Dismiss Copyright Infringement Lawsuit
4
Copyright protection for Brompton’s folding bicycle? CJEU gives green light to the possibility across Europe
5
Protection of store layout under copyright law: the KIKO case
6
Court finds ‘flagrant’ copyright infringement of ‘Love is in the Air’
7
U.S. Supreme Court rules Georgia’s official annotated code outside the scope of copyright protection under “government edicts” doctrine
8
Photographer Unsuccessful in Copyright Case Over Use of Embedded Instagram Photo
9
Who Owns an Athlete’s Tattoos? The Player? The Tattoo Artist? A Licensor?
10
Henley Arch obtains significant damages award in copyright claim against home owner

Air France restrained from using song that infringes “Love Is In The Air”

In April, we wrote about the judgement Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535 (Decision), in which Glass Candy and Air France were found to have infringed the copyright in the well-known 1970s hit song “Love is in the Air” (Love).

Now, in the recent judgement Boomerang Investments Pty Ltd v Padgett (Scope of Injunction) [2020] FCA 1413, the Federal Court of Australia has finalised the injunctive orders necessary to give effect to the Court’s earlier conclusions on the issue of liability in the Decision, amongst other matters.

Injunctive Relief
Principally, Justice Perram addressed the appropriate injunctive relief against Air France in relation to its use of the adaptation of the infringing song “Warm in Winter” (Warm) called “France is in the Air” (France).

Air France contented that the injunction should only go as far as preventing the act of infringement which it was found to have committed, being the use of France as hold music for callers to its Australian toll-free number. However, Justice Perram agreed with the applicants that a wider injunction to restrain Air France from communicating France to the public without the licence of the copyright owner was appropriate.

This would encompass:

  • allowing France to be played on Air France’s YouTube channel (or other such channels) if the licensing arrangement with APRA was altered in the future such that ‘infringing uses’ of Love were no longer covered by the APRA licence
  • further efforts by Air France to use France on services which do not hold an APRA licence, and
  • the authorisation by Glass Candy of any such conduct.

Justice Perram ruled that a wide injunction was appropriate, as there was risk of Air France repeating the infringing behavior which, absent the licence of the copyright owner, ought to be restrained. This was especially so due to the fact that Air France had declined to undertake not to continue using France, leaving open the possibility for Air France entering into a fresh licence agreement for the use of France with Glass Candy and recommencing its ad campaign.

It was decided that the injunction would refer to the ‘copyright owner’ rather than a specific party, to account for any future ownership changes.

Declaration of flagrancy
Justice Perram held that it would be inappropriate to make a declaration regarding the flagrancy of Air France and Glass Candy’s conduct, since:

  • the various factors for assessing additional damages set out in s 115(4)(b) of the Copyright Act 1968 (Cth), which includes the flagrancy of the infringement, were neither necessary nor sufficient conditions for the award of additional damages. Rather, these factors, like any finding of flagrancy, are intermediate steps along the way to another legal conclusion, and
  • the claim for damages against Air France failed as the owner of the communication right comprised in the right to digitally stream Love was incorrectly identified by the applicants (as detailed in the Decision).

Assessment of additional damages
Glass Candy submitted that the Court should not proceed to any assessment of additional damages since the conduct found to be flagrant in the Decision related to the creation of Warm and not the infringements that the Court found Glass Candy committed (which mainly related to the exercise of the communication right in Love). Justice Perram acknowledged that there might be some force in these submissions, but that the additional damages case should proceed.

Key takeaways
While the Court found a broad injunction to prevent the widespread communication of a musical work was appropriate in this case, a declaration of flagrancy was not.

Further developments will be reported once damages are assessed.

By Chris Round, Bianca D’Angelo and Talia Le Couteur Scott

Proposed copyright reform in Australia – Limited liability scheme for use of orphan works

Reforms to the Copyright Act 1968 (Cth) (Act) are just around the corner, and after two years of extensive stakeholder consultation, the Government has finally proposed a limited liability scheme for use of orphan works. The proposed reforms were announced by Hon Paul Fletcher MP, Minister for Communications, Cyber Safety and the Arts, on 13 August 2020.

This proposed amendment will favour the cultural, educational and broadcasting sectors in Australia who will soon be able to use and display works for which a copyright owner cannot be identified or located without risk of copyright infringement, and will result in an important public interest benefit.

Read More

Can’t “Shake It Off” Yet: Court Denies Taylor Swift’s Motion to Dismiss Copyright Infringement Lawsuit

On September 2, 2020, a California federal judge denied musician Taylor Swift’s motion to dismiss copyright infringement claims related to the lyrics in Swift’s hit song Shake It Off. On remand from the Ninth Circuit, the district court held the merger doctrine did not apply at this stage and that plaintiffs Nathan Butler and Sean Hall sufficiently alleged a protectable sequence of creative expression and substantial similarity in the lyrics at issue. This ruling comes nearly three years after Hall and Butler originally filed suit, and nearly one year after the Ninth Circuit breathed new life into the case by reversing the district court’s prior dismissal of this lawsuit.

Read More

Copyright protection for Brompton’s folding bicycle? CJEU gives green light to the possibility across Europe

On 11 June 2020, the Court of Justice of the European Union (CJEU) handed down its decision in the referral from the Belgium Companies Court (Tribunal de l’entreprise de Liège) arising from copyright infringement proceedings by Brompton Bicycle Ltd (Brompton) against a Korean company Get2Get Chedech (Get2Get) relating to its folding bike.

The decision is good news for designers and creative businesses as it lays a foundation for new opportunities for copyright protection and enforcement in Europe. This evolving area of law now requires a low threshold for protection, with a suggestion from the CJEU that minor creative choices in products will be sufficient for a finding of copyright protection.

Read More

Protection of store layout under copyright law: the KIKO case

The Italian Supreme Court decision on the KIKO case (Cass. 780/2020) is the most recent judgement made in the wake of the Cofemel decision (case C-683/17) and follows the UK IPEC decision in Response Clothing (click here for our previous blog post).

In this latest development, KIKO S.p.a, a well-known make-up store was able to secure copyright protection for its signature store layout, made of its open space entrance with digital screens, the white/black/pink/purple color combination, the disco lighting effects, the size, proportions, materials and position of furniture.

Read More

Court finds ‘flagrant’ copyright infringement of ‘Love is in the Air’

In its recent judgment (Boomerang Investments Pty Ltd v Padgett (Liability) [2020] 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.

Read More

U.S. Supreme Court rules Georgia’s official annotated code outside the scope of copyright protection under “government edicts” doctrine

On April 27, 2020, the U.S. Supreme Court ruled in a 5-4 decision authored by Chief Justice Roberts that copyright protection does not extend to the annotations in Georgia’s official annotated code. In the case, Georgia v. Public.Resource.Org, Inc. (No. 18-1150), the majority held that because “Georgia’s annotations are authored by an arm of the legislature in the course of its legislative duties, the government edicts doctrine puts them outside the reach of copyright protection” even though the annotations themselves do not have the force of law.[1]

Read More

Photographer Unsuccessful in Copyright Case Over Use of Embedded Instagram Photo

User beware – you will be held to a social media platform’s terms of use. Most people are aware by using a social media platform that they give up some rights to the content that they share. What rights and to what extent depends on the platform and the specific terms of use.

A district court in the recent Sinclair case found no copyright infringement by the website Mashable, where it used one of photographer Sinclair’s Instagram photos in an article, even after an unsuccessful attempt to license the photo directly from Sinclair. Sinclair v. Ziff Davis, LLC, and Mashable, Inc., No. 1:18-CV-00790 (S.D.N.Y. April 13, 2020).

Read More

Who Owns an Athlete’s Tattoos? The Player? The Tattoo Artist? A Licensor?

Who owns a celebrity’s tattoo, and the extent to which that tattoo can be displayed in a commercial context, raises right of publicity, copyright, and trademark issues. A district court in the recent Solid Oak case found no copyright infringement where a video game incorporated tattoos as inked on professional NBA players. Solid Oak Sketches, LLC v. 2K Games, Inc., No. 16-CV-724-LTS-SDA (S.D.N.Y. March 26, 2020).

This case considered use of tattoos as part of lifelike depictions of professional athletes in video games, however the ruling easily relates to individuals with tattoos who commodify their likeness such as celebrities, social media influencers, and musicians.

Read More

Henley Arch obtains significant damages award in copyright claim against home owner

Late last year, Judge Baird of the Australian Federal Circuit Court handed down a decision in the case of Henley Arch v Del Monaco, a copyright infringement matter in respect of a project home design.

The claim was brought by well-known Australian builder Henley Arch, who readers might also recall from the 2016 decision in Henley Arch v Lucky Homes. The respondent in this case, Dorian Del Monaco, was an individual who owned a property in Pakenham (Melbourne), Victoria.

Read More

Copyright © 2020, K&L Gates LLP. All Rights Reserved.