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Federal Court of Australia decision: Boomerang Investments Pty Ltd v Padgett [2020] FCA 535 (24 April 2020)

For those of you old enough to remember, “Love is in the Air” was a big hit performed by the late John Paul Young in 1977, then revived by its use in the movie Strictly Ballroom in the early 1990s.  Its co-author was Johannes van den Berg (Vanda). Now the song is the subject of a lengthy Federal Court copyright judgment, in respect of the use of an infringing (as the Court found) song called “France is in the Air” used by Air France in its marketing. 

Copyright issues

It was alleged that infringement was a two-step process, via another song called “Warm in the Winter”. That song contained the phrase “Love is in the Air” a number of times, to the same melody as the original song.  Then, “Warm in the Winter” was adapted for Air France to use as “France is in the Air”. In short, the lyrics in that phrase had changed (replacing “Love” with “France”), but the melody (for that line) had not. Therefore, it was alleged that the central feature of the song “Love is in the Air” was copied. The judge agreed that constituted infringement the copyright in the musical work (music and the sound of the lyrics), but not enough to infringe the literary work in the lyrics alone.  

There are a lot of issues in the case, and different people will take out different lessons, including in relation to the ownership of the copyright, tracing its assignment over the years, establishing who has which rights to take action against which infringing conduct, and the assessment of infringement.  

A key reminder in this case is that copyright ownership can be split among different owners for different purposes. Here, it was the streaming rights that were alleged to have been infringed, when the song was communicated over the Internet. Interestingly, due to the language of relevant assignments, tracing the ownership of the streaming right actually went back to a pre-Internet age when digital rights were not yet anticipated!

Another example of a twist and turn was that the streaming on YouTube did not infringe, because YouTube was already authorised (via a separate licence) to stream the original “Love is in the Air”, which picked up the otherwise infringing song. This shows the need for careful review of the scope and potential overlap of copyright licences, particularly where there are multiple owners for different purposes and licensees. 

Damages are to be assessed in due course.

Moral right of integrity

I found the most interesting pick up from the decision to be some obiter dicta comments by Justice Perram about the moral right of integrity of authorship. The right of integrity protects an author’s “honour or reputation” from “derogatory treatment” of a copyright work, in this case allegedly being the change of “Love is in the Air” to “France is in the Air”. 

The relevant section of the Copyright Act was found not to operate in respect of conduct that takes place outside Australia, so on that basis the infringement was unsuccessful.  But notable were his Honour’s comments about what the situation would have been if the section did apply, given the scarcity of moral rights decisions in Australia. 

His Honour noted that “honour” and “reputation” are separate concepts to be examined independently.  Changing the lyrics from “Love” to “France” was not an injury to the authors’ reputation; indeed the judge explained that the infringing version was intended to be classy and high quality, and imitation was flattery.  

But the authors’ “honour” would have been infringed by the change as they would not have wanted to see the central lyric of their song altered.  As his Honour put it: “Although I am not sure my sense of honour would be offended by having the lyrics of a song changed, I have never written a song and the question is whether Mr Vanda and Mr Young’s sense of honour is an objectively reasonable one. In my view, it is.” These comments are likely to be quoted when future cases approach the relative subjectivity of what constitutes an injury to honour in respect of the moral right of integrity.

Not many Federal Court judges reveal much about themselves in their judgments, but we learned that Justice Perram has never written a song!  (Neither have I.)

Fun fact:  Nor have I ever seen a discussion about mondegreens (misheard & misinterpreted phrases / aural malapropisms) in a judgement (see para 71). I’m sure that we’ve all done it.

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