Ignore demands of copyright infringement at your own risk

“…I have received multiple music licence requests just like yours. In the end I was advised to ignore them because we simply don’t know who’s the genuine company that actually protects the artists of the music we play in our venue”

Do you play music in public at your business?

The Federal Court has handed down a decision ordering summary judgement against an entertainment venue and its owner for playing music without a licence from the copyright owner of the work. Additional damages were ordered on the basis that the owner of the business had engaged in conduct which has been “flagrant, sustained and continuing”. This behaviour was the wilful ignoring of the rightful copyright owner’s claims against the business.

In Australasian Performing Right Association Ltd v K Illusion Pty Ltd [2024] FedCFamC2G 928, K Illusion (a karaoke lounge in South Australia) and its owner were ordered to pay over $100,000 in actual damages, additional damages, costs and interest after it was found to have played music in the lounge without licence from the rights holder, the Australasian Performing Right Association (APRA).

APRA claimed (among other things) that copyright subsisted in the music played at K Illusion, that it was the owner of the copyright subsisting in the right of public performance of the music and that K Illusion and its manager infringed this right by reproducing the music in public without licence.

Further to these allegations, APRA stated it had corresponded with the business on multiple occasions, demanding that it cease reproducing the music or alternatively obtain a licence to do so.

The business responded to APRA’s claims with words including:

• I have received multiple music licence requests just like yours. In the end I was advised to ignore them because we simply don’t know who’s the genuine company that actually protects the artists of the music we play in our venue

  …

• I also question those companies, which artists are they protecting, where would the license fee go if I have agreed to pay them.

  …

• This is why I’ve been ignoring companies similar to APRA, CCPA, One Music.

K Illusion and Mr Yang failed to file a defence and, consequently, APRA filed an application for summary judgement on 5 September 2023.

In granting APRA’s application for summary judgement, Judge Manousaridis held that the respondent’s conduct has been “flagrant, sustained and continuing”. It was further held “the respondents could have taken a licence at any time, but elected not to and, moreover, have ignored APRA’s demands.”

On this basis, Judge Manousaridis ordered both K Illusion and its owner to pay $56,071.75 in actual damages, but also $35,000 each in additional damages.

What you need to know

It is difficult to know which demands of copyright infringement are real. It is important to ensure that copyright subsists in the material alleged to have been copied, and that if copyright does subsist, the person making the allegation is the owner of the copyright.

A common scam involves third parties alleging copyright infringement through online use of material which does not belong to the scammer. It is important to not ignore the person claiming ownership of the copyright, as it is open for them to file a claim with the court and obtain default judgement.

That said, such claims can be avoided by ensuring you obtain a proper licence from the correct authority and operate within the scope of that licence.

If you or your business has received a letter of demand alleging copyright infringement, or are unsure whether your licence covers the kinds of work you are performing at your venue, you should consider specialised intellectual property advice. At Harwood Andrews, our specialised intellectual property team can provide you with the advice you need at an early stage to ensure you avoid claims of copyright infringement, as well as helping you should you receive a claim that you have infringed someone else’s copyright.

This article will be useful for anyone who has received a demand of copyright infringement and is unsure of whether the person making the claim is the owner of the alleged copyrighted works.

Michelle Dowdle
Principal Lawter
T 03 9611 0114
E mdowdle@ha.legal

Thomas Howell
Lawyer
T 03 5226 8526
E thowell@ha.legal