Love was not in the air

but don’t go humming (or whistling or singing) that refrain in public!

There are probably not that many Australians who aren’t familiar with John Paul Young’s Love is in the Air[1] either as a popular song from the 70s or featuring prominently in the movie, Strictly Ballroom.

Glass Candy are an American electronic duo based in America who, in 2011, released “Warm in the Winter”. Glass Candy wrote and recorded “Warm in the Winter” in the USA. They made it available for streaming and download on, first, the Big Cartel website and then the IDIB website.[2] They or their rights management agent, Kobalt, also made the recording available through iTunes / Apple Music, Google Play, Youtube, Spotify etc.

Subsequently, Glass Candy provided a version of “Warm in the Winter” to Air France for use by the latter in its Air France: France is in the Air promotional campaign. Until this litigation started, Air France used “France is in the Air” in TVCs and radio advertisements in 114 countries (but not Australia), posted the advertisments on its Youtube channel and, if you rang up its office and all its customer service operators were tied up, for its “music on hold” service.

Boomerang, APRA and AMCOS sued Glass Candy, Air France and Kobalt for infringing the copyright in the musical work and the literary work comprised of the lyrics of Love is in the Air in respect of only the streaming to Australia, downloading by customers in Australia and playing the music on hold to customers in Australia.

The making of the recordings in the USA, the streaming and downloading outside Australia and the running of Air France’s advertisements in those 114 other countries were not part of the case.[3]

Perram J has found that Glass Candy and Air France have infringed the copyright in the musical work comprising Love is in the Air, but the streaming and downloading through iTunes, Youtube, Spotify, Google Play and others did not.

Following the Kookaburra case, Perram J recognised that infringement required a three step analysis:

  • first, identifying the copyright work in which the copyright in Australia subsists;
  • secondly, identifying the part (or parts) of the allegedly infringing work which is said to have been reproduced from the copyright work – involving identifying some sufficiently similar matter which has been copied from the copyright work; and
  • thirdly, determining that the taken part (or parts) were the whole or a substantial part of the copyright work.

To these steps, one should also add two further requirements:

  • identifying the act or acts said to infringe and which right or rights comprised in the copyright that act (or those acts) implicated (e.g. reproduction or communication to the public); and
  • identifying who owned the relevant copyright acts

It’s a long story. Perram J devoted 434 paragraphs to get there. Given that, this post will look at why Perram J found Warm and France did, or did not, infringe Love. A later post may look at the untangling of the ownership.

Infringement, or not

The central question was whether “Warm” and “France”[4] reproduced a substantial part of either the musical work or the literary work comprised in “Love”.

Boomerang et al. contended that the substantial parts of “Love” reproduced in “Warm” (and “France”) were the music and lyrics (1) for the phrase “love is in the air” in (a) the first two lines of the verses and (b) the chorus and (2) the couplet comprising the first two lines of each verse.

In case you are one of those Australians who can’t recite it from memory, you will recall the first verse is:

Love is in the air, everywhere I look around

Love is in the air, every sight and every sound

And I don’t know if I’m bein’ foolish

Don’t know if I’m bein’ wise

But it’s something that I must believe in

And it’s there when I look in your eyes

At [83]: Perram J linked to an audio file of the first two lines.

The chorus is:

Love is in the air

Love is in the air

Whoa, oh, oh, oh

At [87]: Perram J linked to an audio file of the chorus.

Love in the single version released by John Paul Young runs for about 3:28. The phrase “Love is in the air” in the verses runs for about 2.2 seconds, appearing eight times for a total of 20 seconds.

By way of comparison, the relevant parts of “Warm” were the first two lines in two blocks:

Block 1

Love’s in the air, whoa-oh

Love’s in the air, yeah

We’re warm in the winter

Sunny on the inside

We’re warm in the winter

Sunny on the inside.

Woo!

Block 2

Love’s in the air, whoa-oh

Love’s in the air, yeah

I’m crazy like a monkey, ee, ee, oo, oo!

Happy like a new year, ee yeah yeah, woo hoo!

I’m crazy like a monkey, ee, ee, oo, oo!

Happy like a new year, yeah, yeah, woo hoo!

As published in 2011, Warm had a running time of about 6 minutes 45 seconds. The sung line “love is in the air” appeared in Warm at about 1:00–1:02, 1:07–1:09, 2:00–2:02 and 2:08–2:10 of the recording. His Honour linked at [95] to the audio files for the phrase “love is in the air” by way of comparison.

The musical work

A first point of interest is that Perram J accepted at [66] – [77] the musical work included the “instructions to the singer on what sounds to make with the mouth”. This included the sounds comprising the sung lyric including “the non-literary phonetic instructions”:

l?v ?z ?n ði e?, ??vri we?r a? l?k ??ra?nd

l?v ?z ði e?, ??vri sa?t ænd ??vri sa?nd.

However, it did not include the quality of John Paul Young’s actual performance (which was part of the copyright in the sound recording and the performer’s right).

Perram J accepted that the comparison between Love and Warm depended on aural perception and not a ‘note-for-note comparison’.

Applying the ‘ordinary, reasonbly experienced listener’ test, Perram J held at [99] – [104] that the passages in the musical work accompanying the phrase “Love’s in the air” in the Warm blocks was objectively similar to the musical work accompanying that phrase in lines 1 and 2 of Love’s verses, but not in the chorus. At [109], lines 1 and 2 as a couplet were not.

Perram J accepted that there were differences between the relevant parts of Love and Warm. The transcription of the respective scores were different, the difference in styles – disco vs death disco, the presence of a moving bass line in Love, but not Warm were, on the aural test, not significant. It was:

common ground that the vocal lines of both … comprise five notes, the first two or three notes … being in same pitch, the next note dropping down in pitch by a minor third, and the next note returning up in pitch by a minor third.

and according to the experts ‘the pitch and rhythmic content of the opening vocal phrase is notably similar’ between Love and Warm and that ‘there is a basic aural connection between this phrase and the corresponding phrases in Warm’.

At [110] – [202], Perram J considered and rejected Glass Candy’s claim that they were not aware of John Paul Young’s recording of Love before Warm was composed and had not copied it. Rather, his Honour found that they had deliberately copied Love in making Warm.

Perram J then held that the objectively similar part of Love copied into Warm was a substantial part of the copyright in the Love musical work.

Glass Candy argued that the musical phrase for “love is in the air” was ‘too slight and too mundane’ to be a substantial part of Love. It was only five notes in length, did not contain much musical information and, as Vanda conceded, it was a ‘fragment of a melody’. Further, it was too slight to be a copyright work in its own right.

Perram J held, at [205] – [208], however, that the phrase as a sung lyric was original and an essential part of Love, even if it was not a copyright work in its own right. The issue was whether it was a substantial part of Love is in the Air. Assessed qualitatively, therefore, it was a substantial part of Love.

Perram J accepted that the phrase ‘love is in the air’ is a common English idiom and that ‘by industrial combing of the archives’ examples of the melody could be found, but for the purposes of the musical work the literary meaning of the phrase was not relevant. The issue was:

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.

In undertaking the comparison, his Honour discounted parts of the musical work in Love not included in Warm, such as the tambourine track.

His Honour also considered that a cumulative total of the phrase occurring in Love of 20 seconds was not insignificant quantitatively.

The literary work

In contrast to his finding on musical work, Perram J at [216] – [219] rejected the case on infringement of Love as a literary work. The phrase ‘love is in the air’ as a commonplace was a famous idiom which nobody owns. It was not sufficiently original to be a substantial part of the literary work on its own.

Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535


  1. Which of course is really Vanda and George Young’s Love is in the Air performed by John Paul Young.  ?
  2. Italians Do It Better – a record label jointly owned by Padgett (aka Johhny Jewel) and a DJ, Mike Simonetti.  ?
  3. At [16], Perram J speculated this might have been because the action would “probably” have needed to brought in the USA and the potential for a jury trial might have been unattractive. There is a suggestion in his Honour’s reasons that he would have liked to explore an Australian court hearing claims for infringement under US law, presumably based on the Supreme Court’s ruling in Lucas Films v Ainsworth.  ?
  4. For present purposes, the main difference between “Warm” and “France” is that the latter substituted the word “France” for “warm” in the phrase “Love is in the air”.  ?

Help Help I don’t have a copyright

The State of Victoria passed regulations requiring licensed taxis to be fitted with an alarm system that played the message (and only played the message)

“Help-Help-Driver-in-Danger-Call-Police-Ph.000”

It would appear the wording of the particular message derived from Pacific.

Pacific sought licence fees in the Copyright Tribunal pursuant to the Crown Use provisions. That proceeding was adjourned pending resolution of court proceedings to determine if copyright subsisted in the text of the message.

Emmett J held it did not:

17.  Copyright is concerned with the protection of the expression of ideas and not with the protection of ideas as such. Literary work comprises more than mere ideas. Many things that have no pretensions to literary style can be the subject of copyright. A literary work may be expressed in print or writing, irrespective of the question whether the quality or style is high (See University of London Press Limited v University Tutorial Press Limited [1916] 2 Ch 601 at 608). However, there must be some work involved in its production of a literary work, in the sense that it is necessary for the author to add something of substance in the form of the expression of ideas. Whether or not what the author adds is sufficient may be a question of degree in any given case.

18.  The originality that is required concerns the expression of the idea or thought and not the inventiveness of the idea (see University of London Press Case at 608). Whilst the required skill or labour necessary for the creation of a literary work in which copyright may subsist is not large, it must not be insubstantial. For example, as a rule, a title does not involve literary composition and is not sufficiently substantial to justify claims of copyright protection. However, that does not mean that in a particular case the title may not be so extensive and of such a significant character as to attract the protection of copyright ….

Copyright is concerned with the protection of the expression of ideas and not with the protection of ideas as such. Literary work comprises more than mere ideas. Many things that have no pretensions to literary style can be the subject of copyright. A literary work may be expressed in print or writing, irrespective of the question whether the quality or style is high (See University of London Press Limited v University Tutorial Press Limited [1916] 2 Ch 601 at 608). However, there must be some work involved in its production of a literary work, in the sense that it is necessary for the author to add something of substance in the form of the expression of ideas. Whether or not what the author adds is sufficient may be a question of degree in any given case.
The originality that is required concerns the expression of the idea or thought and not the inventiveness of the idea (see University of London Press Case at 608). Whilst the required skill or labour necessary for the creation of a literary work in which copyright may subsist is not large, it must not be insubstantial. For example, as a rule, a title does not involve literary composition and is not sufficiently substantial to justify claims of copyright protection. However, that does not mean that in a particular case the title may not be so extensive and of such a significant character as to attract the protection of copyright

After setting out a list of titles/slogans in which copyright had been denied, his Honour ruled:

21.  The question presently in issue may be stated as whether a piece of writing or collection of words is to be accorded the status of literary work, having regard to the kind of skill and labour expended and the nature of copyright protection and its underlying policy. It is not correct to say that the purpose of the Copyright Act is to protect original skill and labour (see Navitaire Inc v Easyjet Airline Company Limited [2006] RPC 111 at 148-149).

22.  The Help Words are not a form of literary expression, but a setting down of several simple words in the nature of saying something in ordinary parlance. They are no more than a simple instruction. The Help Words do no more than state the obvious words for use in drawing attention to a taxi driver requiring urgent assistance. They are not words that should be afforded monopoly protection.

23.  The Help Words simply indicate a desire to convey the notion that a taxi driver in duress seeks urgent assistance. They do no more than state an idea. The expression is inseparable from the fundamental idea that is being conveyed by the words. When the expression of an idea is inseparable from its function it forms part of the idea and is not entitled to the protection of copyright (see Autodesk Inc v Dyason [1992] HCA 2; (1992) 22 IPR 163 at 172).

His Honour also noted it would be inappropriate for copyright to subsist in such a message lest a taxi driver in trouble or a passerby be found to infringe.

The decision, with respect, is entirely consistent with the approach for infringement recently declared by the High Court in IceTV but, perhaps because the State’s submissions the decision is made one were prepared and filed in October last year, there is no reference to that case.

State of Victoria v Pacific Technologies (Australia) Pty Ltd (ACN 065 199 439) (No 2) [2009] FCA 737

Is copying enough to infringe Down Under?

The Full Court (Lindgren, Goldberg and Bennett JJ) has allowed the appeal in Elwood v Cotton On. So, for example, contrary to the trial Judge’s ruling, Elwood’s copyright in this:

 

Elwood New Deal T-shirt
Elwood New Deal T-shirt

was infringed by this:
  

Cotton On Moscow T-shirt
Cotton On Moscow T-shirt

First, the Full Court agreed with the trial Judge that Elwood’s t-shirt design was properly classified as an artistic work and not a literary work nor both an artistic work and a literary work: the semiotic component – the words and numbers – was too slight for the design to be viewed as an artistic work.

As an aside, the Full Court did not express a view of whether or not the ruling in Anacon that a circuit diagram was both an artistic work and a literary work represented the law in Australia.

Secondly, the Full Court reiterated that infringement was to be tested in 3 steps:

(1) to identify the work in suit in which copyright subsists;

(2) to identify in the alleged infringing work the part taken (ie derived or copied) from the work in suit; and

(3) to determine whether the part taken constitutes a substantial part of the work in suit.

At the stage of identifying the work in suit, the Full Court ruled that it was the work as a whole which needed to be identified.  The Full Court held, however, that the trial Judge had erred by excluding from consideration at this stage those matters which her Honour found were matters of “idea” rather than “expression”.

Cotton On was found, both at trial and on appeal, to have blatantly copied from Elwood’s work. As a comparison of the work and Cotton On’s designs above shows what Cotton On took was the the layout, positioning of elements and the overall “look and feel”.  What it didn’t take were the actual words, symbols and images.

The trial Judge had found this significant, ruling that:

The text and symbols matter. The colours matter. Similarly, unlike Finkelstein J in Autocaps [a reference to Autocaps (Aust) Pty Ltd v Pro-Kit Pty Ltd (1999) 46 IPR 339], I cannot say that what is conveyed by the two prints is the same – it is not.

Having found the error identified above, the Full Court disagreed.  Their Honours found that the layout, selection , arrangement and style of the various elements were a substantial part of the copyright work and so there had been an infringing reproduction.

The means by which the Full Court arrived at this conclusion is significant.

The Full Court had appeared to accept that there may be a role for “ideas” and “expression” at the infringement stage of the inquiry.  However:

35 While the idea/expression dichotomy is basic to the law of copyright, it is a difficult one, particularly in the case of artistic works. What principles are to govern the demarcation? The “idea” underlying a copyright work can plausibly be identified at different levels of generality. The higher the level of abstraction, the more that is left as protectable expression. The lower the level of abstraction, the less that is left as protectable expression. ….

….

37 A difficulty associated with the idea/expression dichotomy is that the choice of the level of abstraction is subjective and uncertain. Mr Simons’s identification of the underlying concept (see [21] above) was not conclusive.

In contrast, the Full Court preferred a rather more mechanistic approach.  The layout, etc., “look and feel” were substantial because the evidence showed that far more effort went into achieving them:

70 Mr Gillott said that he and Mr Simons tried to achieve a “balance” of the six elements on the front and the five elements on the back, and the proportion they bore to one another. He estimated that there were at least 10 to 15 printouts by Mr Simons on which he (Mr Gillott) wrote his comments and his “scribbles”. He said that the entire process took a good two weeks, but no more than three weeks, from the time he handed over his initial draft to Mr Simons.

71 Mr Gillott described Elwood’s design procedure. He said that the form and shape was settled upon first, and the “type elements”, “wording and text elements”, last. It was after that two to three week period that attention was directed to finalising the wording and text. Mr Gillott said that “once we’re down to inputting the words that we would like in the art, that happens quite quickly”. He explained that it took no more than two days to put those elements into the design, because he “already had the ideas to carry “Raging Bulls” through”, and the expression “Durable by Design” was Elwood’s “core logo”. He said that once those elements were introduced, he signed off on the NewDeal print and it took no more than two days for production to commence.

….

73 Mr Gillott’s evidence recounted above, which was not contradicted, was to the effect that by far the greater part of the effort, skill and time involved in designing of the NewDeal T-shirt was devoted to layout rather than with the choice of words and numerals. (emphasis supplied)

Two weeks versus two days may seem, perhaps, a rather quantitative approach to the qualitative assessment of judgment and degree which the traditional inquiry into a substantial part is acknowledged to require.

It also turned out that Elwood’s design was in fact a development of its earlier 96ers T.  Unfortunately, an image of that earlier design is not included in the judgment.  Their Honours explained, however, that the New Generation design involved the following differences:

74 There are obvious similarities between the 96ers and the NewDeal design but the NewDeal design contained artistic expressions of an underlying idea that were not found in the 96ers. Mr Gillott and Mr Simons introduced the following features:

curved sections;

some changes to the presentation of the bull’s head trade mark;

new letter forms;

accentuation of the overall V shape;

a balance of the six elements on the front and the five elements on the back; and

changes in the proportions borne by the respective elements to one another.

By taking these features of the NewDeal design or layout, Cotton On reproduced something that was or included a substantial part of that design or layout.

Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197