Decision on Love is (up) in the Air

In brief 4 min read

Music duo Glass Candy and airline Air France were found to have infringed the copyright in the iconic 'Love is in the Air' with the songs 'Warm in the Winter' and 'France is in the Air'. This remains a case to watch.

Key takeaways

• A 'sung lyric' forms part of a musical work.
• Be aware of who owns all of the relevant rights before bringing any copyright infringement claim.
• Consider whether damages actually flow from the allegedly infringing act.

The decision

Background

The applicants were the combined rights owners and licensees in 'Love is in the Air' (Love). The respondents were Glass Candy, their Australian publisher and Air France. The case revolved around Glass Candy's song 'Warm in the Winter' (Warm), and an adaptation of Warm also created by Glass Candy for an Air France advertising campaign, 'France is in the Air' (France).

Infringement

The applicants' claim alleged copyright infringement through:

• making Warm available for streaming and downloading (including by third party platforms such as iTunes);
• authorising the same; and
• France's availability via YouTube and as telephone hold music.

These allegations departed from the typical approach, which is to claim infringement by reason of the initial recording of an infringing work. The judge speculated that the applicants took the alternate approach due to jurisdictional challenges, the initial recordings having taken place overseas. In summary, the infringement findings for Warm were:

• the music and sound of the accompanying lyric 'love is in the air' was infringed (while these words are sung to a number of different melodies in Love, the words sung to particular notes in sequence were called out as the portion of Love that Warm copied);
• the authorisation case failed, as the third party platforms had APRA and AMCOS licences for Love and were therefore also licensed for Warm; and
• the primary case against Glass Candy succeeded (in relation to Warm being made available on a website related to Glass Candy).

Key to the infringement finding was the conclusion that, while the literary and musical work in a song are separate, the 'sung lyrics' are part of the musical work. The judge commented: 'Viewed as instructions to the singer on what sounds to make with the mouth, the words of a song could not, in my view, more obviously be part of a musical work.' The 'sung lyric' ultimately found to have been copied by Warm, the specific sequence of notes for 'love is in the air', was also deemed the essential air of the song Love.

In rejecting the authorisation case, the judge noted that 'proving that selling Warm to the public is really the same as selling a little bit of Love is pointless against a vendor who has the right to sell both'. He reasoned that those with a right to deal with a copyright work also have the right to deal with a substantial part of that work. Warm merely reproduced a substantial part of Love.

As for France, focusing again on 'love is in the air' sung to the same sequence of notes discussed above:

• the melody and lyrics 'France is in the air' were substantially identical to 'love is in the air', and were copied by Air France from Love; and
• in any event, it was clear that Warm was copied from Love and France from Warm.

Ownership of relevant rights and relief

The position under a range of assignments and licences over the years was that:

• APRA owned the rights for streaming and telephone hold music; and
• Boomerang and AMCOS each held rights for downloads.

This had consequences for which parties had standing to sue (and saw the late joinder of APRA and AMCOS).

On the primary case against Glass Candy, Boomerang and AMCOS were entitled to an injunction. Boomerang also claimed and was entitled to damages on that case. As the copying was flagrant, Boomerang is also entitled to be heard on additional damages. Only APRA had standing for claims against Air France and was entitled to the claimed injunction for telephone hold music only. As set out above, there was no relief for authorising any conduct by third party platforms licensed to use Love. Accordingly, despite the successful infringement finding, the decision may not sound in significant damages for primary applicant Boomerang, due to assignments and licences granted to APRA and AMCOS, and given minimal downloads from the website related to Glass Candy.

What happens next?

Watch this space. An application to vary the reasons for judgment regarding the court's findings on particular licences, which could have had implications for the findings on the authorisation case, was refused. However, there will be a further hearing to assess damages.