Love is in the air, is in court of Perram J

Glass Candy Infringement analysis

Objective similarity

His Honour stated the test of objective similarity as follows at [97]:

This question is not to be determined by a ‘note-for-note comparison’, and depends ‘in large degree upon the aural perception of the judge’: Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 608 and 618; see also EMI at 475 [121(5)]. This analysis requires me to put myself in the shoes of the ‘ordinary, reasonably experienced listener’: EMI at 497 [209]. It is not clear (though not strictly necessary to answer in the present circumstances) whether that hypothetical person refers to an ordinary, reasonably experienced listener of death disco, regular disco, fem pop or all of the above. Nor does the requirement that I position myself as the ordinary, reasonably experienced listener necessitate pretending that my Associate and I have not been subjected to repeated and seemingly interminable renditions of the three works the subject of this proceeding, or that I have not been assisted by expert evidence.

The Court concluded at [100] as follows:

There are, one may accept, differences between them but I do not believe that these are significant. … the fact that in Love the line forms part of a song which is in the 1970s disco genre and that Warm has been described as a species of ‘death disco’ does not mean that the single line ‘love is in the air’ in both songs is not objectively similar. For example, the bass note progression from the air in Bach’s Orchestral Suite No 3 (BWV 1068) is clearly discernible in the organ line in Procul Harem’s ‘A Whiter Shade of Pale’ and that conclusion is not slightly dented by the stylistic gulf between the two works. Nor did such a difference in genre prevent the outcome in EMI.

Copying

The Court went on (at [144]-[147] and [159]-[168] & [182] to reject Johnny Jewel’s evidence that he had not heard Love is in the Air before Warm in the Winter was composed, and Ida No’s evidence that she had composed it before she had heard Love is in the Air. Without delving into detailed evidence, its flavour is gleaned from Ida No’s detailed account at [166] of how she had been inspired to use the phrase:

“The lyrics “love’s/love is in the air” were inspired by Eastern philosophy, traditional Chinese medicine philosophy, yogic philosophy, and astrology. My life and creative process are strongly influenced by a belief that love is a metaphysical phenomenon that is ‘in the air’ all around us, and inherent in all aspects of human existence. I recall first being exposed to this idea as an element of Eastern philosophy when I began practicing yoga in Portland, Oregon around 2003. I attended numerous yoga classes in Portland where the teachers would give discourse at the end of class about “chakras”, which are different areas of the body that connect with an essential energy or life force. I recall going to a yoga class centred on heart chakra opening where the teacher said the phrase “love’s in the air, love is everywhere”. I do not remember specifically which teacher or the date of that class, but it would have been around 2005. ‘Love's in the air’ also has connotations with Chinese zodiac and astrology. John and I are both air signs in astrology.

Interestingly, the Court found (at [191]) that Johnny Jewel had a tendency to sample other people’s music without permission, but partly as no tendency case was run did not think that assisted the Applicants in establishing intentional copying. The Court did, however, find (at [193]-[200]) that the lyric and its accompanying music were intentionally copied for the following reasons.

• Glass Candy were well-acquainted with Love is in the Air by the time the vocal line in Warm was composed.
• Although the expression ‘love is in the air’ is a common English idiom, the use of a particular set of vocal instructions (which happen to also bear the meaning of that well-known idiom) alongside a minor third drop is, in my opinion, very rare. The chances of Glass Candy coming up with the same vocal line (whilst including other similar features, such as the tonic chord or rhythmic profile of the line) seem to me to be very small. In reaching that conclusion I take account of the lyric as part of the musical work.
• The combination of the features taken was not ‘routine or commonplace’: Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2012] FCAFC 4; 95 IPR 64 at 72 [48], 73 [52].
• The Court was accordingly satisfied that coincidence could not explain objective similarity, and that Glass Candy did copy the vocal line from Love either deliberately or subconsciously.
• Given also the rejection of Glass Candy’s evidence, and that their earliest recording containing the common vocal line was entitled ‘Love is in the Air’, the copying was found to be deliberate.

Substantial Part

The next critical element in establishing infringement was whether the part taken was a substantial part, which imports issues of both originality and substantiality. As to the former, the Court held at [203] that:

A consideration of whether something is a substantial part of the original work involves a consideration of quality and quantity (IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14; 239 CLR 458 (‘IceTV’) at 473 [30]) but usually ‘depends much more on the quality than on the quantity of what has been taken’.

The Respondents sought to bifurcate the Vanda & Young musical work from the lyrics/literary work, and said the Court should not assess originality by considering them together and that neither considered alone was original.  His Honour rejected the argument, observing at [206]:

It is not to the point in that analysis to say that the expression ‘love is in the air’ is a common English idiom or that the melody in H1, H2 and H3 can, by industrial combing of the archives, be detected in some forms of Anglican plainchant or is somehow otherwise the only or most obvious way in which the phrase could be sung. The literary meaning of the words is not relevant. The question is whether the line ‘love is in the air’, as a set of instructions, sung by a human to that melody and with its accompanying orchestration is original. In my view, that question answers itself.

As to substantiality of the part taken to the copyright work, the Court was equally forthright despite quantitative arguments at [208]-[209]:

Glass Candy submitted that the line is ‘too slight and too mundane’ to be a substantial part of the musical work in Love. The Respondents went to great lengths to emphasise that H1 is only five notes in length, that it does not contain ‘very much musical information’, and that Mr Vanda conceded that it was a ‘fragment of a melody’. I do not accept that the part taken is too short or too mundane. Qualitatively, it is the essential air of the song, and it is certainly not so slender that it would be impossible to recognise it: EMI at 456 [49].

Musical history is littered with musical phrases which are short but essential: the first nine notes of Johann Sebastian Bach’s Toccata and Fugue in D minor (BWV 565); the sung lyric ‘we will, we will rock you’ from Queen’s ‘We Will Rock You’; the sung lyric ‘Memory’ in Andrew Lloyd Webber’s Cats; and, shorter still, ‘Despacito’ from the song of the same name by Luis Fonsi (featuring Daddy Yankee) and later remixed to feature Justin Bieber. I do not find in any way persuasive the Respondents’ misguided attempts to ignore the reality of the sung lyric ‘love is in the air’.

The Court accordingly concluded that in making a September 2011 commercial recording of Warm in the Winter, Glass Candy infringed the copyright in the musical work Love by deliberately copying a substantial part of Love is in the Air, the sung line ‘love is in the air’ and accompanying music.

On the other hand, the applicants failed (at [215]-[220]) in their second case of literary work infringement because the line ‘love is in the air’ was not sufficiently original to be regarded as a substantial part of the lyrics of Love is in the Air, the Court holding that obvious, commonplace or prosaic statements are unlikely to be original, and therefore substantial, for the purposes of assessing infringement.

Air France context and infringement

The Court described the relevant background at [221] as follows:

In 2013, Air France decided to have a brand makeover and to craft an image which capitalised on French concepts of sophistication mixed with a distinct sense of cool. It wished to move away from any connotation of arrogance but to retain the French reputation for class. In a sense what the airline seems to have had in mind was a Gallic version of Cool Britannia, keeping the useful core values of the culture, jettisoning the undesirable ones and sprinkling the end-product with two tablespoons of hip: altogether, ‘pleasure à la française’.

A budget for music to accompany a planned television commercial was set at €150,000. It was filmed in 2014 and screened from 2015 to 2018, its music based on an adaption if Warm in the Winter by Johnny Jewel. The Court described the TVC at [236] as follows:

Elegant French women swing back and forth on trapeze bars suspended from coloured ropes hung from an airy canopy which, in due course, is revealed to be the cabin of a vast light filled aircraft fuselage. Inevitably, there are baguettes. France is clearly an adaptation of Warm and I did not understand this to be in dispute. At the risk of risk of over-simplification, it is a condensed version of Warm in which the lyric ‘love is in the air’ has been brought to centre stage and changed to ‘France is in the air’ or perhaps ‘France’s in the air’. Those who are intimately familiar with Warm will recognise that all of the lyrics and melodies of France (apart from the word ‘France’) are derived from Warm although their order and emphasis are different. The commercial is about 45 seconds in duration. It finishes with ‘France is in the air’ followed by Ms Monahan’s melisma ‘whoa’.

The Court had no difficulty finding objective similarity at [238]-[240], dismissing the change from ‘Love’ to ‘France’ on the basis that the line retains the same syllabic and rhythmic profile and melodic contour. Interestingly the Court did not apparently consider, or consider relevant, the quite different meaning conveyed by the Air France work (i.e. France is in the Air with Air France).

His Honour went on to conclude (at [266]- [269]) that, subject to a close examination of the rights in question, infringement had been made out.

Difficulties with streaming and downloading claims and title to sue

However, at this point the Applicants claims for substantive relief unravelled somewhat. That was because the Applicants’ musical work case against all Respondents was not based on original infringements. Rather, the Applicants claimed the rights to stream and download Love is in the Air over the internet, and said that by streaming and permitting the downloading of Warm, and streaming France on YouTube and using it as telephone hold music), the Respondents had infringed those rights.

The analysis of who had standing to sue and whether the relevant rights were infringed is complex and beyond the scope of this brief note (see [270]-[392]). In partial summary the Court found that:

• Generally, the Applicants’ case against Glass Candy insofar as it involved streaming or downloading from digital platforms such as Spotify or YouTube failed because Glass Candy:
  • were not themselves responsible for the streaming and downloading as those sites are operated by their owners;
  • could not be liable for secondary infringement on the basis that they authorised the platforms to stream and download Warm, because those platforms were authorised by APRA and AMCOS to stream and make available for download Love as well as Warm (there can be no secondary infringement (authorisation) without primary infringement (making available for streaming or downloading)).
• There was limited downloading from two websites authorised by Glass Candy, but the Applicants’ case against Glass Candy in relation to the downloading and streaming of Warm from the other digital platforms otherwise failed.
• Warm was made available for streaming and downloading on iTunes, but its activities had the benefit of both an APRA and AMCOS blanket licence; nothing iTunes did could be an infringement of the copyright in Love is in the Air.
• Warm was made available for downloading from two IDIB websites related to Glass Candy (the duo was part of the Italians Do It Better label), and for streaming and downloading from iTunes, Google Play, Spotify, Apple Music and YouTube, but not SoundCloud. Except in the case of the two IDIB related websites, the operator of each of these services held an APRA/AMCOS blanket licence authorising each to make Love available for streaming or downloading, so the operators of those services did not infringe the copyright in Love by making Warm available for downloading or streaming.
• The consequence was that the Applicants’ case in relation to Warm failed except in relation to IDIB’s minimal actions in allowing customers in Australia to download copies of Warm from the Big Cartel website and is threatening to do so from its own website.
• The case against Air France in relation to the streaming of France as part of its commercials on YouTube failed as YouTube held an APRA licence which authorised it to stream Love (and hence the substantial part of Love which was copied in France). The case in relation to the hold music succeeded, but the only party entitled to sue was APRA.

Vanda and the estate of Young pursued a moral rights claim under ss 189 and 195AI (2) of Part IX of the Copyright Act, the relevant right being the right of integrity of authorship and not to have the work subjected to derogatory treatment.

‘Derogatory treatment’ is defined in ss 189 and 195AJ(a) to mean the doing of anything ‘that results in a material distortion of ... or a material alteration to’ the work which is ‘prejudicial to the author’s honour or reputation’. They argued that France is in the Air involved the material distortion of or material alteration to Love is in the Air by changing the lyric from ‘love is in the air’ to ‘France is in the air’, and that this was prejudicial to their honour or reputation.

Because the relevant conduct was extra-territorial in France, their claim was found to be barred by s 195AX; however, his Honour went on to record (at [400]-[410]) that if that conclusion is wrong, he would have found the moral rights case made good in relation to the telephone hold music and the streaming of the commercial on the following bases:

• The change of ‘love’ to ‘France’ was a material alteration or distortion.
• ‘Honour or reputation’ in s 195AJ involves two distinct concepts and it is not a composite expression.
• No question of reputation arises but application of the expression can be objectively determined.
• Vanda and Young’s senses of honour were, viewed objectively, prejudiced by the change in the lyricsation. That was sufficient to establish derogatory treatment under s 195AJ.

In the result (see [426]-[433]), the digital streaming and moral rights claims were dismissed and only limited downloading and use in telephone hold music infringements were upheld.

The respondents contend that damage is de minimus, but that remains to be seen. The Court concluded that the infringements found were flagrant, so the question of damages will include contentions by the Applicants that they are entitled to additional damages and that their damages should be assessed on a foregone licence basis.