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
- Which of course is really Vanda and George Young’s Love is in the Air performed by John Paul Young. ?
- Italians Do It Better – a record label jointly owned by Padgett (aka Johhny Jewel) and a DJ, Mike Simonetti. ?
- 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. ?
- 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”. ?
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