“…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 a karaoke lounge and its owner for playing music without a licence from the copyright owner of the work. This decision highlights the importance of acknowledging demands of copyright infringement, as well as the significant additional damages which may be awarded for infringement of another’s intellectual property.
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 have been ordered to pay over $100,000 in actual damages, additional damages, costs and interest after it was found to have played music in the nightclub without licence from the rights holder, the Australasian Performing Right Association (APRA).
APRA filed its claim in June 2023, alleging (among other things) that:
Copyright subsisted in the music played at K Illusion;
APRA is the owner of the copyright subsisting in the right of public performance of the music; and
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.
Despite agreeing to file a defence by 27 June 2023, K Illusion and Mr Yang failed to do so. 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 are genuine when met with allegations of copyright infringement. Of course, when faced with allegations, it is important to ensure that:
copyright subsists in the material alleged to have been copied; and
if copyright does subsist, the person making the allegation is the owner of the copyright.
A popular scam involves third parties alleging copyright infringement through online use of material which does not belong to the scammer. It is important to engage at an early stage with 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 Sladen Legal, 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 Lawyer
T +61 3 9611 0114 | M +61 408 674 256
E: mdowdle@sladen.com.au
Thomas Howell
Lawyer
T +61 3 5226 8526
E: thowell@sladen.com.au
