Neither Warm feelings, nor Love, in the air

Neither Warm feelings, nor Love, in the air


‘Love is in the Air’ (Love) was composed in 1977 by iconic duo Harry Vanda and George Young, made famous in 1978 by John Paul Young, and attained heightened fame in 1992 when it featured in Baz Luhrmann’s Strictly Ballroom.

Lexi Vanguard and Jeff Bergmann of Solubility discuss a recent decision, with interesting lessons when claiming copyright infringement through digital streaming and downloading on major platforms.

In 2017, Vanda, Young’s estate Boomerang Investments Pty Ltd and copyright collecting societies APRA and AMCOSS brought an action for copyright infringement against the music group Glass Candy (an American duo comprising John Padgett and Lori Monahan), their publishers Kobolt Music, and Air France. The Applicants claimed that Glass Candy’s song ‘Warm in Winter’ (Warm) reproduced a substantial part of Love, and that certain downloading and streaming, as well as the use of an adaptation of Warm (“France is in the Air”) in a marketing campaign by Air France infringed copyright.

On 24 April 2020, The Federal Court handed down its judgment. The Applicants had mixed success.

The Decision

The Court held that a substantial part of Love had been copied, and in a flagrant manner, and that certain limited instances of streaming/downloading of Warm, also amounted to infringement.  However the Court also held that digital streaming/downloading of Warm on major platforms did not infringe copyright, as it fell within blanket licences granted to those platforms in respect of Love.  The Court also held that using “France is in the Air” as hold music infringed, and that that adaptation of Warm for the Air France advertising campaign would have infringed the authors’ moral rights had it occurred in Australia rather than France.

As the court found the copying of Love to be deliberate, it concluded that the infringements were flagrant and proposes to hear further argument on their entitlement to aadditional damages.

Flagrant Copying

After analysing expert evidence from musicologists, Perram J held that the similarity between the songs was ultimately a question of impression and that there was no substitute for listening to what he considered to be the relevant portions of the competing parts of Love and Warm.  Perram J found that the music and the sound of the accompanying lyric ‘love is in the air’ in Warm were objectively similar to the same melody and lyric in Love, but that other aspects of the respective works were not objectively similar.

Mr Padgett defended the claim by stating that he had never heard Love at the time of composing Warm, and therefore couldn’t have copied the work. However, the Court rejected Mr Padgett’s evidence, finding that he had a series of exposures to Love, ‘within months of’ composing Warm and further that Glass Candy had intentionally copied the lyrics, given that the objective similarity between the two songs could not have been a coincidence.

The Court also held that the substantial part test was one of quality over quantity.  Despite the relevant aspects of Love which he considered to have been copied only forming a small percentage of Love, Perram J found that those aspects were the essence of the song. The Court went on to give other examples shorter combinations of lyrics which were also considered the essence of a song, one example being the lyric ‘‘Despacito’ from the song of the same name by Luis Fonsi.’ This is a potentially the high watermark of quantitative assessment in recent times, as compared to the 2011 decision of EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd, where the Court held that Men At Work’s song ‘Down Under’ contained a qualitatively substantial part (as well as two of the four bars) of the song ‘Kookaburra Sits in the Old Gum Tree’.

The Court also concluded that Air France’s adaptation of Warm, replacing ‘Love is in the air’ with ‘France is in the air’, retained ‘the same syllabic and rhythmic profile and melodic contour’, and similarly constituted copyright infringement.

Peculiar Infringement claim

Interestingly, the Applicants chose not to claim infringement based on the creative act of making Warm.  Perram J speculated that this may have been because the Applicants would have had to bring the suit in the US, and risk the matter being heard by a jury.

Instead, the Applicants pursued a claim based on digital streaming/downloading of Warm.  The Respondent’s alleged copyright infringements ‘turned on the submission that they [had] the right to stream and download Love over the internet and that the Respondents [had], by streaming and permitting the downloading of Warm (or in streaming France on YouTube and using it as telephone hold music) infringed those rights’.

However, the Court found that Boomerang had assigned certain rights to APRA and also granted a blanket licence to AMCOS, to allow the digital streaming and downloading of Love on platforms, such as Spotify and iTunes.  Each of those major platforms had in turn been granted blanket licences by APRA and AMCOS and those blanket licences included rights to stream and download Love. Therefore, to the extent that making Warm available for streaming and downloading on major platforms was alleged to infringe rights in Love, such conduct was properly characterised as a dealing in a substantial part of Love, and was in turn authorised by the rights granted under the blanket licence in respect of Love.  Thus streaming and downloading Warm on major platforms was not infringement.

Separate from the major streaming platforms, Glass Candy authorised their record label Italians Do It Better Records (ITIB) and the website Big Cartel to upload Warm for downloading. As neither of these had been granted any blanket licence by APRA or AMCOS in respect of Love, the Court held that this conduct was infringing. However, it was noted that the volume of such downloads was not large, with some downloads having occurred as a result of the Applicant preparing to bring an action.

Air France had also uploaded their adaptation to YouTube and used the song as their telephone hold music.  Similarly, the upload to YouTube fell within the scope of the APRA and AMCOS blanket licences.  However, APRA was entitled to an injunction from Air France in relation using Warm for hold music.

No Moral Rights Breached

Vanda and Young’s estate’s claim that Air France had infringed their moral rights by replacing ‘Love’ with ‘France’ was dismissed, as the relevant conduct had occurred outside of Australia.

However, Perram J held that had that not been the case, the adaptation would have constituted an infringement of those moral rights, on the following basis.

  1. The change of ‘Love’ to ‘France’ was a material alteration or distortion.
  2. No harm was done to their reputation. To the contrary, most listeners would have made the connection to Love and thought it was an example of the commercial use of the song. There was “nothing unsavoury about the Air France advertisement, indeed it is, as it was intended to be, quite classy and one might have thought it a feather in one’s cap for it to be used as the music for a well-known international airline. There is flattery in imitation.”
  3. The change was, however prejudicial to the authors’ honour.  The authors had never agreed to a change in the lyrics of Love when they had licensed its use and it was is not far-fetched to imagine that Mr Vanda did not wish to see the central lyric altered.