The question of whether lyrics form part of the musical work of a song is no longer up in the air. The recent copyright case, Boomerang Investments Pty Ltd v Padgett, was the first time in Australia where the sung sound of the lyrics was included in the musical work.

Generally, courts in Australia view songs as constituting two separate copyright works: the music (the musical work) and the lyrics (the literary work). This case means those two elements need to be considered together as well as separately.

The Federal Court decision concerned the infringement of intellectual property rights subsisting in the musical and literary works comprising the Australian pop classic, 'Love is in the Air'.

This case also highlights the strategic considerations involved in bringing an infringement action – including the jurisdiction in which the action is brought.

Details of the Federal Court decision

Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535 (Boomerang) concerns the alleged infringement of the intellectual property rights of John Paul Young's 1978 chart-topper, 'Love Is in the Air' (Love) via online streaming platforms. Fans of Australian director Baz Luhrman's oeuvre will also recognise the tune from his 1992 directorial debut, 'Strictly Ballroom'.

There were five applicants in the case (Applicants):

• Boomerang, the company which owns the copyright in 'Love Is in the Air';
• Mr Vanda, one of the composers of the song;
• Ms Young, the sister of the late George Young, the other composer of the song, and executrix of his estate; and
• the Australasian Performing Right Association Ltd (APRA) and Australasian Mechanical Copyright Owners Society Ltd (AMCOS), two Australian organisations that collect royalties for musicians.

There were four Respondents:

• Mr Padgett and Ms Monahan, two current members of the American musical duo Glass Candy (Glass Candy Respondents);
• Kobalt, Glass Candy's Australian publishing company; and
• Air France.

Were parts of the song copied?

The Applicants, who all asserted some intellectual property rights in Love, claimed that the Respondents had copied parts of the song. Specifically, they claimed that:

• Glass Candy had copied some of the lyrics and melody of Love in their song 'Warm in the Winter' (Warm); and
• Air France had further copied Love when an advertising agency they had appointed to create their new advertising campaign adapted Warm into a new song, ‘France is in the Air’ (France).

The Applicants argued that Glass Candy knowingly copied their song to create a 'poor man's Love'. They alleged that Air France's advertising agency selected the song for that reason: because it was an inexpensive alternative to Love.

The Glass Candy Respondents argued that they could not have copied Love because Warm was published in 2011 and its composer, Mr Padgett, had not heard

Love before that time.

Air France submitted that they did not intend to copy Love in their advertising campaign, and could not have, because they were not aware of a link between the songs. In Air France's view, if there was any knowledge of a link between the songs it was only at the external advertising agency and that company's potential knowledge should not be imputed to Air France.

'Love Is in the Air' copyright – musical work or literary work?

Generally, courts in Australia view songs as constituting two separate copyrights: the music (the musical work) and the lyrics (the literary work).

Musical work

Justice Perram accepted the distinct categories of copyright. However, instead of finding that the musical work consisted only of the music made by instruments, His Honour found that the sung sound of the lyrics formed part of the instrumentation of Love, as he considered the human voice to be a musical instrument.

This conclusion meant that the lyric 'love is in the air' as sung was a part of the musical work copyright. This was the first time an Australian court had reached such a conclusion.

Justice Perram made this determination in three stages;

• first, he identified the section which had allegedly been copied: the line 'love is in the air', as sung, along with its accompanying instrumentation;
• second, he searched for that line in the other songs. Whilst His Honour accepted that the musical style of the two songs was very different, he observed that Warm did indeed feature the familiar line: 'love's in the air.' Justice Perram found that this line, as sung and accompanied, was 'objectively similar' to the equivalent line in Love: the opening vocal phrases of both lines featured 'notably similar' pitches and rhythmic contents;
• third, His Honour determined the line was a 'substantial part' of Love, confirming that this is a qualitative analysis of the importance of the part taken to the copyright work.

The legal test having been made out, His Honour found that Warm had copied Love. He made the same finding about France, as the Respondents admitted France was adapted from Warm. Consequently, in adapting Warm's line 'love's in the air' to 'France's in the air', France had committed the same sin as Warm.

Literary work

Although the Applicants succeeded in proving that Warm and France infringed Love's musical work, they failed to show the same for its literary work.

To own the copyright in a literary work, the lyrics need to be original. Justice Perram found that the phrase at issue in this case, 'love is in the air', was not original to Love. He instead found that the phrase was a well-known English idiom; one which has been used in music lyrics many times before, by artists as diverse as Steven Sondheim and the Rolling Stones. As the phrase was not original, the lyric 'love is in the air' was not found to be a substantial part of the literary work, and therefore the line from Love was not protected from copying.

Infringement when streaming or downloading

Instead of suing Glass Candy for the initial recording, the Applicants argued that their copyright was infringed each time that Warm was made available for streaming or downloading on platforms such as YouTube and Spotify. This claim required the Court to distinguish which Applicant owned which right; a matter that was complicated by various assignments and licences dating back to as early as 1972.

Digital streaming and making available for download

The rights to communicate Love to the public were assigned to APRA in 2005, meaning that the collecting society had the rights to stream Love (or a substantial part of Love). Importantly, Justice Perram found that even without any streaming or downloading occurring, the effect of making the works available online is also a communication to the public of the works.

Justice Perram found that the owner of the right to reproduce Love in a material form, and therefore authorise its downloading, is Boomerang, and AMCOS holds the exclusive licence. The licence agreement that gave effect to the right to reproduce Love in a material form also provided the express power to sub-license that right.

Where the online music service held licences to stream and permit copies of Love to be downloaded over the internet, the service could not be liable for those acts in respect of Warm and France. Justice Perram ultimately found that this led to the 'odd result' that although Warm and France copied a substantial part of Love, the primary infringement case failed in respect of making the song available for streaming and downloading, as the online music services in question all held APRA and AMCOS licences for Love.

Boomerang's case of secondary infringement therefore failed, as Glass Candy could not be found liable for authorising the music services to stream and make available for download Warm, when there was no primary infringement to be found.

However, Justice Perram did find that all downloads of Warm made directly from the IDIB and Big Cartel websites, which were not licenced by APRA or AMCOS, were infringing acts. Glass Candy was liable to Boomerang and AMCOS for making Warm available to download from those websites. Disappointingly for the Applicants, the revenue derived from those downloads in Australia was a measly $11.50. However, the matter of special damages is yet to be heard. Justice Perram, who described the deliberate copying of Love by Glass Candy as 'flagrant', suggested that an assessment of damages 'may not be so modest' as the revenue derived from the infringing acts.

The conundrum faced by the Applicants is that if they brought the matter against Glass Candy for the initial recording of Warm, they may well have succeeded. However, the initial recording was made in Oregon, USA, which would require the matter to be brought in the United States. Justice Perram speculated that the decision not to sue Glass Candy for the initial recording may have been due to the strategic risks the Applicants would face in bringing the case in the United States, including that Glass Candy would be able to demand a jury trial.

Moral rights

Mr Vanda and the estate of Mr Young were unsuccessful in claiming that Air France infringed their moral rights. Justice Perram found that France would have been found to infringe on their moral rights, had the moral right infringement occurred in Australia. He also found that the communicating of the infringing work would also fail as it required an initial infringement in Australia.

In holding that the infringement of moral rights would not be made out due to territorial restrictions, Justice Perram nonetheless went through the elements of the infringement and confirmed that the change in lyrics from 'love' to 'France' constituted a material alteration or distortion and that this alteration was prejudicial to the Applicants' honour. In coming to this conclusion, it was relevant that although the Applicants have authorised Love to be reproduced in other advertisements, they have never authorised the lyrics to be changed.

The Applicants did not argue an infringement of moral rights based on the importation of an electronic copy of France into Australia. Justice Perram noted that, in order to succeed in such a case, the Applicants would need to allege that Air France had imported an electronic copy of France into Australia and they ought reasonably to have known that France would have infringed the Applicants' moral rights if it was made in Australia. To this end, Justice Perram stated, '[s]uch a case on the current facts is not impossible to imagine'.

Conclusion that sung lyrics form part of the musical work

Musicians can now take some comfort in the fact that their sung lyrics form part of the musical work as well as constituting a literary work. While this may have been small consolation for the Applicants, who were entitled to damages or an account of profits for $11.50 in download revenue, the question of additional damages and damages for foregone licence is still open and will be determined at a later hearing.

The Applicants' claims in relation to streaming and downloading from online music services as well as moral rights infringement failed, despite the Federal Court finding that the Respondents deliberately copied the Applicants' work and that the infringements were 'flagrant'. This may have given rise to a different outcome had the Applicants sued in respect of the initial recording – although this would have required that the action be brought in the US, raising a number of additional risks (cost not the least of them).