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

FEDERAL COURT OF AUSTRALIA

Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535 File number: NSD 1738 of 2017

Judge: PERRAM J

Date of judgment: 24 April 2020

Catchwords: COPYRIGHT – musical works – identification of copyright work – whether sound of lyrics as sung forms part of musical work – 'love is in the air' as both lyric carrying meaning and phonetic instruction to vocalist – objective similarity between copyright work and allegedly infringing works – consideration of ordinary, reasonably experienced listener – relevance of expert evidence and chambers' heightened familiarity with works – causal connection – whether conscious or unconscious copying – consideration of process of creation of allegedly infringing works – whether part taken a substantial part of copyright work – originality – whether sung lyric 'love is in the air' and accompanying music 'essential air' of copyright work – whether part taken 'too short' to be substantial COPYRIGHT – musical works – where allegedly infringing works created outside Australia – where reproduction and communication rights alleged to have been infringed by streaming, downloading and telephone hold music – effect of assignment and licensing arrangements – whether authorisation infringement possible without primary infringement COPYRIGHT – literary works – whether lyric reproduced in allegedly infringing works a substantial part of literary work – originality of lyric taken – whether 'love is in the air' an obvious, commonplace or prosaic expression COPYRIGHT – moral rights – right not to have work subjected to derogatory treatment – meaning of 'reputation' and 'honour' – consideration of territoriality requirements CONTRACTS – construction of assignment and licensing arrangements concerning rights in copyright work and allegedly infringing works involving Fourth and Fifth Applicants – relevance of extrinsic materials – effect on standing of First Applicant to sue DAMAGES – whether sufficient prospect of entitlement to real pecuniary award to justify inquiry for damages or account of profits – entitlement to additional damages – whether copying flagrant – where further hearing as to relief necessary EVIDENCE – standard of proof in civil proceedings – allegations of conscious copying and falsified evidence – gravity of allegations – Evidence Act 1995 (Cth) s 140 PRACTICE AND PROCEDURE – application for leave to file rejoinder submissions – where various complaints made about nature and quality of Reply submissions – consideration of standard for leave to be granted