The Federal Court recently found that US band Glass Candy copied a
substantial part of the song ‘Love is in the Air’. While profits made from
infringing downloads of the song were trivial, Perram J foreshadowed
that damages based on a foregone licence may not be so modest. 1
Inspire July 2020
Background 8
The Aussie disco classic ‘Love is
in the Air’ has a rich and colourful
history. Composed by Harry Vanda
and the late George Young in 1977,
it soon become a worldwide hit,
brought to life by the groovy vocals
of John Paul Young. In 1992, the
song experienced a resurgence
in popularity as the theme song
to Baz Luhrmann’s film Strictly
Ballroom. Once again, in 2000,
it swept the nation with nostalgia,
as it was performed live by John
Paul Young at the closing ceremony
of the Sydney Olympic Games.

The song is an influential part of
Australian music history – perhaps
indeed, a little too influential. In
2017, the owner of copyright in ‘Love
is in the Air’ brought infringement
proceedings against US music
duo, Glass Candy. It was alleged
that Glass Candy had reproduced
a substantial part of ‘Love is in
the Air’ in their electro-pop song
‘Warm in the Winter’. Both songs
feature the lyrics ‘ love is in the
air’ to much the same melody.

It was also alleged that’s Glass
Candy’s song ‘France is in the Air’
featured a substantial part of
‘Love is in the Air’. ‘France is in
the Air’ is a shorter version of
‘Warm in the Winter’, in which
the lyrics ‘ love is in the air’ have
been replaced with the lyrics
‘France is in the air’. The song
was made for use in Air France’s
international marketing campaign.

Have a listen and see what you
think. The relevant portions of
the songs are accessible here:
‘Love is in the Air’
‘Warm in the Winter’
‘France is in the Air’
Decision After a lengthy hearing spanning
some nine days, Justice Perram held
that Glass Candy, through both of
its songs, had indeed infringed the
musical work comprised in ‘Love is
in the Air’. His Honour rejected the
claim that Glass Candy had infringed
the literary work comprised in the
lyrics of ‘Love is in the Air’. In so
finding, his Honour noted that ‘love
is in the air’ is a famous English
idiom which nobody owns. In that
regard, it was not sufficiently original
to be considered a substantial part
of the lyrics as a whole for the
purposes of infringement.

One interesting point
to emerge from the
decision was the
extent to which
lyrics, while their
own separate
literary work,
may be taken
into account as
part of a musical
work when sung.

The parties disagreed at length
over this issue, with there being no
binding authority one way or the
other in Australia. However, Justice
Perram resolved the question finding
that although the words constituting
the lyrics form a separate literary
work, the sound of words being
sung is part of the musical work.

Damages There were only 12 downloads of
‘Warm in the Winter’ from a website
owned by one of the band members.

These totalled $11.50 in revenue.

Glass Candy submitted that relief
should be withheld because the
amounts were trifling. However,
Perram J foreshadowed that the
applicants would likely contend
that damages should be assessed
on the basis of a foregone licence.

His Honour also invited submissions
on additional damages having
concluded that the infringements
were flagrant.

This is a useful reminder that
while profits made by an infringer
may be trivial, a copyright owner
may still be entitled to significant
damages – especially where
additional damages are available.

Alexis Keating | Lawyer
LLB (Hons), BSc
alexis.keating@pof.com.au Boomerang Investments Pty Ltd v Padgett
(Liability) [2020] FCA 535
1
US band infringe
copyright in 70s classic
‘Love is in the Air’



COVID 19:
Countless counterfeits
confiscated The COVID-19 crisis has heightened
the dangers posed by the global trade
in counterfeit pharmaceutical products.

Between 3 and 10 March 2020, in
the same week the World Health
Organization (WHO) declared the
coronavirus outbreak a pandemic,
Operation Pangea, a collaborative
enforcement effort by the World
Customs Organisation, Interpol,
Europol, Customs administrations,
Police forces and other law
enforcement agencies, made 121
arrests across 90 countries. The result
was the seizure of more than 4.4
million units of illicit pharmaceuticals
worth over US$14m. 1 Items seized
included counterfeit masks, “corona
spray” or “coronavirus medicine”.

From websites selling fake COVID-19
blood screening tests which claimed
to deliver a result within two minutes,
to the sale of chloroquine via instant
messaging apps, or on the dark web,
counterfeiters have been quick to take
advantage of the coronavirus crisis.

Europol recently released a report on
the activities of counterfeiters during
the COVID-19 crisis 2 explaining that
the production and distribution
of COVID-19-related counterfeit
pharmaceutical and healthcare
products closely followed the spread
of the pandemic to markets in the
European Union. Counterfeiters
focused on medical equipment
(especially face masks, fake test
kits, disposable latex gloves,
etc.); sanitisers and disinfectants;
and also pharmaceuticals
(antivirals, medication for arthritis
and malaria in particular).

Counterfeiters distributing
counterfeit pharmaceutical products
rely on complex illegal distribution
chains to obscure the origin of the
counterfeit drugs using several
transit countries. The companies
trading in counterfeit goods are
highly diverse, and suspects
are very quick at establishing
additional front companies to
obscure their activities.

Customs authorities around the
world continue to identify and
seize a large number of counterfeit,
unapproved, or otherwise
substandard COVID-19 products
including test kits, anti-virus lanyards
and counterfeit face masks 3 .

In Australia, dozens of consignments
of the anti-malarial drug
hydroxychloroquine, totalling more
than 6,000 tablets, have been
intercepted at the border since
January. Australian Border Force
officers have also reportedly seized
800,000 masks that have been
found to be counterfeit or otherwise
faulty and the Therapeutic Goods
Administration was instructed on
26 May to investigate whether
defective face masks had been
sold to some private hospitals
by companies exploiting a
loophole in regulations.

Online retailers such as Amazon
and eBay have had to block or
remove millions of products for
suspect or misleading claims
in relation to COVID-19.

Counterfeiters distributing counterfeit
pharmaceutical products rely on
complex illegal
distribution chains
to obscure the origin
of the counterfeit
drugs Brand owners are also taking action.

As demand for 3M company’s
N95 respirator masks skyrocketed
worldwide, they had to create a
COVID-19 fraud hotline to help
combat fraudulent and price gauging
activity. On 8 June, they also filed
a legal action in California against
an Amazon seller advertising fake
respirator masks at a price that
exceeded by as much as 20 times,
3M’s genuine items pricelist.

No doubt if a genuine vaccine
for COVID-19 is developed in the
future, it will prompt a wave of
offers for counterfeit vaccines too.

Inspire July 2020
Marine Guillou | Senior
Associate LLM (Edinburgh University)
marine.guillou@pof.com.au https://www.interpol.int/en/News-and-Events/News/2020/Global-operation-sees-a-rise-in-fake-medical-products-related-to-COVID-19
https://www.europol.europa.eu/publications-documents/viral-marketing-counterfeits- substandard-goods-and-intellectual-property-crime-in-covid-19-pandemic
3 U.S. Customs and Border Protection: https://www.cbp.gov/newsroom/national-media-release/cbp-continues-seize-large-
number-counterfeit-and-unapproved-covid-19? _ ga=2.148233139.541438310.1591852146-2107848005.1591852146
1 2
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