Schott Musik International GmbH & Co v Colossal Records of Australia Pty Ltd
[1996] FCA 1033
•26 NOVEMBER 1996
CATCHWORDS
INTELLECTUAL PROPERTY - copyright - subs 55(2) Copyright Act 1968 (Cth) - application for declaration of infringement of copyright of original work and consequential relief - whether a "techno" dance music remix or adaptation of the "O Fortuna" chorus from Carl Orff's work "Carmina Burana" "debases" the original work - meaning of the term "debase" in subs 55(2) - consideration of the legislative history of subs 55(2) - common usage considered - courts to be cautious in judging artistic merit, taste, appreciation and value - broad approach.
Copyright Act 1968 (Cth) ss 55(1) and (2)
Imperial Copyright Act 1911
Copyright Act 1912 (Cth)
George Hensher Limited v Restawhile Upholstery (Lancs) Limited [1975] RPC 31, considered
Bleistein v Donaldson Lithographing Company (1903) 188 US 239, considered
Hay and Hay Construction Co Ltd v Sloan (1957) 12 DLR (2d) 397, considered
SCHOTT MUSIK INTERNATIONAL GMBH & CO, BOOSEY AND HAWKES (AUSTRALIA) PTY LIMITED & AUSTRALASIAN MECHANICAL COPYRIGHT OWNERS SOCIETY - v -
COLOSSAL RECORDS OF AUSTRALIA PTY LIMITED, DOMINICO LOPRETE & SALVATORE LOPRETE
No NG 743 of 1995
Tamberlin J
Sydney
26 November 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 743 of 1995
GENERAL DIVISION )
BETWEEN: SCHOTT MUSIK INTERNATIONAL
GMBH & CO
First Applicant
BOOSEY & HAWKES (AUSTRALIA)
PTY LIMITED
Second ApplicantAUSTRALASIAN MECHANICAL
COPYRIGHT OWNERS SOCIETY
Third Applicant
AND: COLOSSAL RECORDS OF
AUSTRALIA PTY LIMITED
First Respondent
DOMINICO LOPRETE
Second RespondentSALVATORE LOPRETE
Third Respondent
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 26 NOVEMBER 1996
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The application be dismissed.
The applicants pay the costs of the respondents.
NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 743 of 1995
GENERAL DIVISION )
BETWEEN: SCHOTT MUSIK INTERNATIONAL
GMBH & CO
First Applicant
BOOSEY & HAWKES (AUSTRALIA)
PTY LIMITED
Second ApplicantAUSTRALASIAN MECHANICAL
COPYRIGHT OWNERS SOCIETY
Third Applicant
AND: COLOSSAL RECORDS OF
AUSTRALIA PTY LIMITED
First Respondent
DOMINICO LOPRETE
Second RespondentSALVATORE LOPRETE
Third Respondent
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 26 NOVEMBER 1996
REASONS FOR JUDGMENT
Introduction:
The question for decision is whether a "techno" dance music adaptation of the "O Fortuna" chorus from "Carmina Burana" ("the work"), composed by Carl Orff in 1936 , "debases" the work.
The adaptation of the work is recorded on a compact disc known as "Excalibur" which contains four remixed tracks of the "O Fortuna" chorus. The chorus comprises the opening and closing sequences of "Carmina Burana". The evidence indicates that the "techno" genre is a form of music particularly favoured at "raves" which have been described in evidence as all-night dance sessions where loud pulsating music is played. It is said that the techno genre embodies a "slavish" devotion to the use of rhythm as a hypnotic tool that is, largely, if not primarily, interpreted by electronic means.
The dispute arises in this way.
The applicants seek a declaration that the three respondents have infringed the applicants' copyright in the work. Consequential relief, in the form of an injunction, delivery up and damages, is also sought.
Subsection 55(1) of the Copyright Act 1968 (Cth) ("the Act") relates to what are known as compulsory licences and it enables a manufacturer to make a record of a work without infringement of copyright in specified circumstances which, it is common ground, are present in this case. However, the entitlement is subject to the exception in s55(2) which reads:
"(2) The last preceding subsection does not apply in relation to a record of an adaptation of a musical work if the adaptation debases the work." (Emphasis added)
The Parties
It was common ground that the chorus is a substantial part of the work "Carmina Burana". (See s14 of the Act).
The first applicant, Schott Musik International GMBH & Co ("Schott") is the owner of copyright in the work. Its subsidiary, Schott & Co Limited, which is not a party, controls the copyright in the work in Australia. The second applicant, Boosey & Hawkes (Australia) Pty Limited, is the exclusive licensee of the copyright in the work for present purposes. The third applicant, Australasian Mechanical Copyright Owners Society, is the exclusive licensee of certain aspects of copyright in the work in Australia and administers, on behalf of its members, the statutory licence in s55(2) of the Act and also administers an agreement with the Australian Record Industry Association and the Australian Music Publishers Association.
The first respondent, Colossal Records of Australia Pty Limited ("Colossal") is a corporation and the second and third respondents are directors of Colossal.
The respondents have made or authorised the making of compact discs embodying a sound recording entitled "Excalibur, '95 Remix of O Fortuna" performed by the Italian music group FCB. I will refer to the disc as Excalibur.
The parties have adduced evidence from a number of musical experts and persons experienced in the industry to provide material relevant to the question as to whether the Excalibur adaptation "debases" the work.
The Questions
The first question which arises is what is meant by the term "debase".
The second is whether the evidence establishes that Excalibur debases the work.
Debase
The term "debase" is not defined and neither my research nor those of Counsel, disclosed any useful legal precedent as to the meaning of the term.
Both parties referred to the legislative history and the normal usages of the term "debase" as set out in various dictionaries.
The legislative history provides the legal matrix against which the word is to be considered and the dictionaries indicate the accepted usages of the term. These references, however, are simply indicators as to the meaning of the term and do not control the meaning of the term in its statutory context. As both experts, who gave oral testimony agree, there is no simple clear-cut standard against which "debasement" can be assessed.
Legislative History
Prior to the enactment of the 1968 Copyright Act (Cth), the statutory copyright law in force in Australia was the Imperial Copyright Act 1911, which was extended to Australia by the Copyright Act 1912 of the Commonwealth Parliament. This law remained substantially unchanged for more than 55 years, during which time there were advances in the means of reproducing and disseminating copyright works. The film industry and the record industry were only in their infancy in 1911. Broadcasting and television have developed almost entirely within that period. There were, of course, substantial developments in the technology available for recording and reproducing music moving from perforated rolls through tapes to compact discs as well as major advances in the technology of broadcasting, performing and interpreting musical works.
The Copyright Act 1911 was replaced in the United Kingdom in 1956 by a completely revised law, but it continued to be the law in Australia until 1968. Significant changes were made to the English Copyright Law in 1956. In 1967 and 1968 the Federal Parliament considered the 1959 Copyright Law Review Committee Report under the chairmanship of Sir John Spicer ("the Spicer Report"). During 1967 and 1968 the Parliament considered a draft bill and in 1968 it enacted the provisions which are now in force.
The 1911 United Kingdom Act was preceded by the Berne Convention and a revision of that Convention was embodied in the Berlin Act 1908. Article 13 of the Berlin Act 1908 provided:
"ARTICLE 13
The authors of musical works shall have the exclusive right of authorizing: (1) the adaptation of those works to instruments which can reproduce them mechanically; (2) the public performance of the said works by means of these instruments.
Reservations and conditions relating to the application of this Article may be determined by the domestic legislation of each country insofar as it is concerned; but the effect of any such reservations and conditions will be strictly limited to the country which has put them in force."
In the 1909 Report of the United Kingdom Board of Trade Committee on the law of copyright, the authors pointed out that very large business had arisen as a result of the then state of the law in which authors were considered to have no right to restrain the reproduction of their works by means of mechanical instruments. The authors of the report said that if Article 13 was implemented, there could be great danger of a monopoly being introduced whereby one or more large manufacturing companies could secure rights from authors to such an extent that other manufacturers might be practically excluded from the trade. The witnesses before that inquiry who supported these contentions urged that existing businesses had been built up on the principle that no licence or royalty was required and that if licences from authors had to be obtained, small concerns would be unable to compete. The Committee rejected this argument and concluded that the author should have freedom of action with regard to the exercise of his or her rights.
However, this recommendation was rejected by Parliament and provision was made in s19 of the 1911 Act for compulsory licences. Section 19(2) limited the entitlement to compulsory licences in the following terms:
"... Provided that -
(i)nothing in this provision shall authorise any alterations in or omissions from the work reproduced, unless contrivances reproducing the work subject to similar alterations and omissions have been previously made by, or with consent ... of the owner of the copyright, ... or unless such alterations or omissions are reasonably necessary for the adaptation of the work to the contrivances in question; ..." (Emphasis added)
The Commonwealth of Australia Copyright Act 1912, with some modifications, applied the 1911 United Kingdom Act to Australia.
The emphasis in the exception to the non-authorisation of alterations was on whether there was a similarity in the alterations or a reasonable necessity for the alterations in the adaptations. These tests called for a close similarity between the adaptation and the original work.
The 1911 Act was repealed by the Copyright Act 1956 (UK). That was followed by the 1959 Report of the Copyright Committee of the Board of Trade.
In paragraph 81, the authors state:
"Our second recommendation, namely, that the right of the gramophone companies to record copyright material which the composer has already authorised for recording shall continue, may be more open to question, but the principle was clearly enunciated by the Legislature in the Copyright Act of 1911, and we see no sufficient grounds for recommending any substantial change in a practice which has a history of 40 years behind it."
Section 8(1) of the 1956 UK Act provides:
"8(1)The copyright in a musical work is not infringed by a person (in this section referred to as "the manufacturer") who makes a record of the work or of adaptation thereof in the United Kingdom, if -
(a) records of the work, or, .... of a similar adaptation of the work, have previously been made, in or imported into, the United Kingdom for the purpose of retail sale, and were so made or imported by, or with the licence of, the owner of the copyright; ...
Section 8(6) provides:
"For the purposes of this section an adaptation of a work shall be taken to be similar to an adaptation thereof contained in previous records if the two adaptations do not substantially differ in their treatment of the work, either in respect of style or (apart from any difference in numbers) in respect of the performers required for performing them ." (Emphasis added)
Under the 1956 UK Act the question turned on substantial similarity in style or performers.
In 1959 the Spicer Committee Report on Copyright in Australia recommended against the repeal of the compulsory licence provisions on the basis that history, more than logic, should be applied and that historical considerations, coupled with practical realities, required that the law should not be changed.
In May 1967, the Commonwealth Attorney-General, Nigel Bowen introduced a Bill on Copyright, which relevantly contained the following clause 54(2), which was the predecessor to s55(2):
"(2) The last preceding subsection does not apply in relation to a record of an adaptation of a musical work ... -
(a) where the previous records ... were records of the work in its original form and did not include records of an adaptation of the work - unless the relevant adaptation is substantially the same in style, and requires the use, for its performance, of substantially the same instruments, as the work in its original form;" (Emphasis added)
The Bill lay before Parliament until presented in its amended form in 1968. In the relevant amendment enacted as s55(2), it was provided:
"(2) The last preceding sub-section does not apply in relation to a record of an adaptation of a musical work if the adaptation debases the work." (Emphasis added)
This is the wording of the present section.
For the first time the term "debase" is introduced in substitution for "substantially the same" style, instruments and performers which was the wording originally proposed.
The tensions between the competing interests of record manufacturers and musical copyright owners are reflected in the second reading speech by the then Attorney-General, Nigel Bowen, (Hansard, House of Representatives, 16 May 1968 at 1530-1531):
"Prior to the 1911 Act, a person who made a record of a musical work did not infringe the copyright in that work. The 1911 Act gave, for the first time, the copyright owner the right to authorise the recording of his music. Fears were expressed that this could result in the development of a monopoly in the record industry if one or two companies, by employing the best artists and entering into contracts with the leading composers, gained control of the record market. To avoid this, the 1911 Act provided a statutory licence to record a musical work once the work had been recorded with the consent of the copyright owner. The record industry has developed on the foundation of this statutory licensing system.
The 1967 Bill proposed to continue this system, ... It followed what had been done in England in the 1956 United Kingdom Act ... The record manufacturers complained that provisions of the 1967 Bill would narrow the scope of the system to the point where it would cease to apply to the greater part of their business. The owners of musical copyright sought an increase in the royalty required to be paid on records made under the compulsory licence and opposed any change in the scope of the licence.
After full consideration of the arguments that were put by both sides I came to the conclusion that some changes should be made. The most important changes relate to the conditions precedent to the operation of the statutory licence and to control by the copyright owners of the release of records made under the licence. ..."
When responding to comment on the 1968 Bill, the Attorney-General said, (Hansard, House of Representatives, 4 & 5 June 1968 at 1961):
"Another matter that was raised ... was the provision for a compulsory licence in clause 55. He said that the difficulty was that once the composer had allowed his work to be put into record form by one manufacturer a second manufacturer might come along and "muck up his work," to use the honourable member's words. An attempt has been made to cover that possibility in sub-clause (2) of clause 55. If the production is a debased form of the work it is not covered by the freedom from copyright. There would be a capacity to stop a debased form. That is covered in the Bill."
The above history shows a deliberate move away from a requirement which emphasised "substantial similarity" to a requirement that the adaptation should not "debase" the work. This is a significant change in language.
The word "debase" introduces a criterion which is significantly more value-based than the notion of "substantial similarity" in style, instruments or performance. The exercise is, of course, not an arithmetic one of objectively balancing known quantities nor is it an entirely subjective one.
To say that a work is "debased" by an adaptation is to go considerably beyond a comparison of degrees of variation and relativity. It necessarily involves an evaluation by reference to musical tastes and preferences. What is debasement to a large section of the community may be an enhancement or an alteration of neutral effect to other representative sections of the community.
The degree of alteration is no longer the conclusive test. It is relevant. The requirement of "similarity" has been abandoned. Adaptation necessitates variation but the present criterion of debasement does not impose any limit on the extent of that variation other than the limit inherent in the notion that it must be an "adaptation" of a work. This calls for some degree of identity between the adaptation and the original. The transition in language then indicates a substantial broadening of the benchmark for deciding whether a record is within the ambit and protection of s55(1).
Section 55(2) is also silent as to the identity of the arbiter or audience according to whose tastes and discernment the work is to be considered debased. Ultimately it is for the Court to decide on the evidence placed before it.
The subsection in its present form is concerned with the effect of the adaptation on the work and not with the "honour or reputation" of the author. The latter criterion is the subject of proposals to enact the Moral Rights legislation which derives from Article 6 bis of the 1948 Brussels Act of the Berne Convention. That Article is concerned with the honour and reputation of the author and is not based on the notion of debasement. Legislation embodying these principles has not been enacted in Australia.
Usage
Relevant dictionary meanings of the verb "debase" were referred to in argument. These can be summarised as follows:
Macquarie Dictionary: "1. To reduce in quality or value; adulterate.
To lower in rank or dignity"
Oxford English
Dictionary:"1. To lower in position, rank or dignity; to abase.
To lower in estimation; to decry, depreciate, vilify.
To lower in quality, value of character; to make base, degrade.
(b) To lower the value of coin."
Webster's Third
International Dictionary:"1. To lower in esteem by verbal attack, disparage, vilify.
To lower in status or esteem, put to a low or inferior use.
To lower the quality or character, cause to deteriorate.
To reduce the extrinsic value of (a coin) by increasing the base metal content; to depreciate."
Black's Law Dictionary
5th ed (1990)
"Reducing the weight of gold and silver in coins of standard value or of increasing the amount of alloy in such coins. Such has the effect of reducing the intrinsic value"
The applicants' submissions generally urged the relevant meaning as being "to alter the quality or integrity of the work 'Carmina Burana' or to adulterate it". On the other hand, the respondents' preferred view was that it meant "devalue" or "lower in estimation".
In my view, there is no water-tight distinction between the definitions. The dictionary definitions are not conclusive but they are of some assistance. It is not appropriate in the present case to isolate one line of definition to the exclusion of the others. To some extent the definitions overlap. For example, a reduction in quality or adulteration
may be reflected in the monetary value or perceived worth of the copyright.
The term "debase" cannot be used in the present context in the sense that it is used in the expression, "debase" the currency, because that would lead to the conclusion that the addition of any other inferior element must entail a debasement. That is clearly not what is intended by the present section which contemplates change but not of such a nature and extent as to "debase" the work. All witnesses approached the matter as a question of degree and not one of some absolute quality standard.
In my view, the appropriate approach is to consider the various lines of definition, and balance them with the evidence, legislative history and other relevant matters.
It is not appropriate to ignore the effect of the adaptation on the quality or integrity of the original and look only at the reputation of the work. Equally, it is not appropriate to exclude, in deciding the question, the effect of the adaptation on the value or reputation of the work.
Several relevant observations, in my view, arise from the foregoing:
The term "debase" does not call for substantial sameness or even similarity in style, instruments or performance. They are relevant but not conclusive considerations.
The only necessary similarity between the original work and the adaptation is that the latter must be an "arrangement" or "adaptation" of the work.
The term "debase" calls for a value judgment based on a significant lowering in integrity, value, esteem or quality of the work.
Regardless of which view is taken as to the meaning of "debase", there is, of necessity, a question of degree involved in deciding whether a work is "debased" by an adaptation.
As musical tastes are so divergent and varied, (which is amply illustrated by the evidence in this case), it is necessary in approaching the question, to pay due regard to that broad spectrum of taste and values. It would be wrong to take a strictly analytical or pedantic view of individual changes made in the adaptation and simply find the sum of those changes to reach a conclusion. Rather, it is necessary to consider the overall impression which it is likely to make on a community with a wide range of tastes and attitudes in relation to adaptations and musical forms.
In forming a conclusion, it is necessary to determine and consider the nature and extent of the variations.
While some guidance can be obtained from "expert" witnesses, the question is largely one of impression and the Court must decide on the evidence placed before it whether the adaptation is so extensive, detrimental or inferior, as a whole that it amounts to debasement.
Approach
In questions of artistic merit and appraisal of musical works, the Courts are careful not to impose on the rest of society the artistic or aesthetic tastes of an individual judge or group of judges.
In George Hensher Limited v Restawhile Upholstery (Lancs) Limited [1975] RPC 31 at 54-55, Lord Reid pointed out that courts ought not to be called on to make aesthetic judgments and that while judges may have to be experts in the use of the English language, they are not experts in art or aesthetics. He went on to say:
"If any substantial section of the public genuinely admires and values a thing for its appearance and gets pleasure or satisfaction, whether emotional or intellectual from looking at it, I would accept that it is artistic although many others may think it meaningless or common or vulgar." (Emphasis added)
In Bleistein v Donaldson Lithographing Company (1903) 188 US 239, Holmes J, speaking of "pictorial illustrations" at 251 said:
"It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to the pictures which appeal to a public less educated than a judge. Yet if they command the interest of any public, they have a commercial value - it would be bold to say they have not an aesthetic and educational value - and the taste of any public is not to be treated with contempt."
There will always be, in the words of the art-critic, Robert Hughes, "the shock of the new". But the fact that a version may shock, does not mean that the original work is debased.
In Hay and Hay Construction Co Ltd v Sloan (1957) 12 DLR(2d) 397 at 401, Stewart J of the Ontario High Court, observed:
"The good art of today is almost invariably the bad art of tomorrow, for aesthetic standards and values change from generation to generation. The admirer of Fragonard would scarcely concede merit to Mondrian's rectangles. He who rejoices in the stately periods of Sir Thomas Brown would probably find the prosody of Gertrude Stein intolerable. Orff and Offenbach, save in the unusually eclectic,
do not attract the same disciples nor for that matter would Martha Graham and Gypsy Rose Lee. In this last antithesis I may be wrong."
The above authorities, of course, concern different expressions used in different legislation but they indicate the need for considerable caution on the part of courts when determining matters of artistic taste, appreciation and aesthetic values.
The Evidence
Mr Meale, an eminent composer and musician gave evidence as to the alterations made by Excalibur to the "O Fortuna" chorus, which in his view, debased the original.
There was no substantial difference between the experts as to the existence of these alterations. Rather, the differences related to the significance and the effect of the alterations.
As a general description Mr Meale outlined the following:
"1.Change of key;
Change of time values;
Interruptions between consecutive bars;
Separation of consecutive passages;
Linkage of separated passages;
Distortion of sound;
Glissandi applied to chords,
Extraction, manipulation and repetition of fragments;
Reversal of chord progressions;
10.Overlay of various percussion sounds;
11.Overlay of synthesised chords. The use of B flat major; ...
12.Contraction of passages; ...
13.Sampled chords switched on and off to provide techno rhythms;
14.Overlay of voices enunciating common phrases; and
15.Manipulating choral chords to sound as though the choir was singing common words..."
Mr Meale analysed the four Excalibur tracks in some detail and commented on those changes which he considered debased the work. He also noted the duration of each track and the time during which the "O Fortuna" chorus take-offs are played. These are as follows:
Track Title Duration of "O Fortuna"
Radio Mix 2 minutes 40 seconds out of a total duration of 3 minutes 52 seconds
Skitz Mix 3 minutes out of 6 minutes 20 seconds
Templar Version 2 minutes 35 seconds out of 5 minutes 28 seconds.
Merlinmelodic Song 1 minute 28 seconds out of 5 minutes 17 seconds.
The above proportions of time indicate that the original theme comprises a substantial part of the four tracks so that it can be properly described as an adaptation. It is by no means distorted to the extent where it cannot be recognised.
Mr Meale considered that an adaptation of a classical piece of great beauty into a "techno" music piece would per se be a debasement of the original classical piece. He considered that conversion to such a modern form debased, not because it was modern, but because of the nature of the "techno" adaptation. He did not profess to be a expert on "techno" music but regarded it as a modern type of music which generally uses a very electronic form with a fairly fixed pulse.
In the course of cross-examination, the following exchanges took place:
"Q.So that much of what you have put in your affidavit material, ... about Mr Orff and his works has been knowledge you have acquired for the purpose of this case?
A.That is correct, over the last 12 months.
Q.What is your opinion today of the work Carmina Burana?
A.My opinion today is that it is a fine, fine work of high quality in our Western culture.
Q.Is that opinion one which is any different to the opinion you held about that work 12 months ago?
A.Yes, it is different.
Q.Is it different in the sense of being a higher opinion of the work now or in the sense of being a lower opinion of it?
A.It is a higher opinion of it.
...
Q.Yes, so you agree with me that your opinion has not been affected by those cover versions?
A.No, my opinion has not been affected.
.....
Q.... Now, you have mentioned, ... that a techno version of a classical piece per se, to you would debase it. What other types of adaptation, in your mind, per se would debase a classical work?
A.One that would destroy aspects of its what I have called integrity, that is, its wholeness or one-ness - I don't mean wholesomeness; I mean its one-ness. One that destroys the form of the piece. One that injures the composer's emotional intentions. One which veers far enough away from the original to change its nature, its structure and message."
Mr Meale emphasised the "one-ness" or "integrity" of the work and had regard to the nature and extent of the variations. He saw the variations as "injuring" the work and "mutilating or distorting" it.
Mr Meale did not attach significance to the fact that sales of the original work had increased since the release of Excalibur, nor the possibility that a substantial section of the public would not perceive the adaptation as a debasement.
His evidence impressed me as being considerably influenced by his calling and experience as a distinguished composer, naturally anxious to protect the integrity of the composer's creation. He considered that Excalibur showed no respect for Orff's work. His strong feelings are shown by the somewhat emotive references to "mutilate", feeling "angered" and to "desecrated". However, in my view, a finding of "debasement" calls for a considerably broader approach than that taken by Mr Meale.
Mr Peter Grimshaw gave evidence for the applicant. He is a Director of the second applicant, and has been employed by the second applicant since 1983. His employer has a financial interest in the outcome of this proceeding. He is a graduate of the Queensland Conservatorium of Music and holds a Diploma of Music. His views are summarised in the his affidavit as follows:
"......
In my opinion the FCB remix is derogatory to the work "Carmina Burana" and damaging to the reputation of Orff's music. In my opinion, the effect Of the FCB remix is to lower the dignity Of Orff's work and of "Carmina Burana" in particular. The "O Fortuna" chorus has been taken out of context of the whole work. The melody has been mixed with techno elements, as well as wilful interruptions and alienation which lower the work in the context of its dignity, artistic quality and character.
.....
The FCB remix contains music created by electronic instruments, with sampling of an original recording of the work fading in and out. The recording is alienated by scratching and other manipulations. It is my observation that instead of the complex alternating rhythm which contributes essentially to the effect of the original work, the rhythm of the arrangement is a monotonous synthesis techno beat.
In my opinion, the arranger has used the original in such a way that its hymnic invocation has been forcibly adapted to the tonal language of the techno music movement. The loss of artistic expression is deliberate, and the effect is to denigrate the work by using a music style which is consciously opposed to the large scale choral method of performance."
Insofar as Mr Grimshaw refers to the reputation of Orff's music as a whole, he does not address the relevant question posed by s55(2). He emphasises the existence of techno elements and other modifications. He finds the techno rhythms monotonous in the change in music style from the large choral method of performance.
Mr Toop gave evidence for the respondents. He has occupied the Chair of the Musicology Unit of the Sydney Conservatorium of Music University of Sydney, since 1981.
He accepted Mr Meale's outline of alterations made in the Excalibur adaptation to the work, but did not regard them as injuries, mutilation or distortions. His conclusion was:
".... I do not believe that any of the versions of O Fortuna in the FCB (Excalibur) Remix lowers the dignity or character of Carmina Burana, or degrades it. Further, I do not believe that they lower the quality of Carmina Burana any more than would be normal with an arrangement."
Mr Toop addresses the comments of Mr Meale but differs markedly with respect to the qualitative conclusions drawn by Mr Meale.
Mr Toop had significant reservations about the artistic value of the Orff work. He saw it as being endowed with a certain "kitsch" simulation of dignity. He associated the work, to some extent, as being in conformity with National Socialist ideology and culture prevalent in German society at the time of its composition in 1936.
I attach no importance to this approach because I think it is the work itself and the adaptation which must be examined and not the prevailing political philosophy and ideology at the time of composition. The evidence indicates diverging views among experts as to the rank of "Carmina Burana" in the musical canon. However, I accept that the work has important musical qualities which confer on it an important position in the Canon. In fact some of the authorities cited by Mr Toop refer to Orff as an outstanding and successful composer.
Nevertheless, I think there is considerable force in Mr Toop's evidence that the Excalibur remix does not debase the original.
Mr Toop traced the influence of Stravinsky on Orff's works. He does not consider that the overall standing of a significant composer's work could be damaged by a single techno arrangement. He points out that electronic manipulation of existing music, which is then significantly distorted and chopped up, is also a consistent feature of Western concert hall electronic music, especially since the mid-sixties. He refers to Karlheinz Stockhausen's Hymnen which makes extensive use of such techniques applied to the national anthems of many countries. He also refers to Beethoven's Ninth Symphony which has survived numerous arrangements, including an electronic modification in the sound track of the film "A Clockwork Orange". He refers to parodies of Tristan and Isolde in works by Fauré, Debussy and Hindemith. He observes that deviation from a composer's prescribed tempo are common in interpretations of classical music. Mr Toop says that the "techno rhythms" of Excalibur are as intrinsic as the rhythms in the original work. He does not believe that Excalibur lowers the work in quality or dignity.
Mr Toop also refers to the capacity of musical works to survive many and varied arrangements. In his view, the added techno treatment, does not adversely affect the language of "O Fortuna" and that its essential harmony is left intact. He regards the chorus as having a tribal character whose "expressive content" is unchanged by Excalibur.
When Mr Toop was asked how much further one needed to go than the Excalibur version, in order that "O Fortuna" would be debased, he said that he would expect to hear the original material by Orff either virtually or totally obliterated or presented in such a way as really to deprive it of all its all essential effect. Mr Toop saw the essential affect of the original as being "celebratory", "ceremonial" and somewhat "ritual in character". He did not believe that this element disappeared in the adaptation. He did agree it would probably not be reinforced by it. The position taken by Mr Toop in requiring either total obliteration or loss of all essential effect, in my view, is too extreme. Nevertheless, I consider there is substance in his view that it cannot be said that the essential affect of the chorus has been lost. Excalibur gains its character and colour very largely from the assistance of the original "O Fortuna" theme, which permeates to a very substantial degree, each of the four tracks of Excalibur. The exuberance and stirring quality of the original is readily identifiable throughout much of Excalibur.
As between the two eminent experts who gave oral evidence, I prefer the broader approach as to what is required for there to be a debasement, suggested by Mr Toop, rather than the narrower qualitative approach suggested by Mr Meale. I am reinforced in this view by the other expert evidence adduced on behalf of the respondents.
Christine Douglas, who has been a full-time opera singer for 13 years, having joined the Australian Opera in 1988 where she is regularly employed as a principal soprano, considered that the effect of the Excalibur recording and the exuberance of techno music generally, was "in line" with Orff's desire to bring youth and contemporary music together, through rhythm and dance. Although, she would not purchase the remix, she considered it was impossible to say that it debases the work or lowers its dignity, quality or character. She considered the techno version will introduce a new audience to the "Carmina Burana".
Mr Gordon Kerry is a full-time composer of classical music and has been so engaged for the past 11 years. He has been composer in residence with Music Viva Australia and the Sydney Philharmonic Choirs and Youth Music Australia. He sees "Carmina Burana" as very much a secular populist work designed to reach a large audience with essentially simple harmony and melody and exciting dance based rhythms. The inclusion of the opening bars of the "O Fortuna" chorus in Excalibur is in keeping with the spirit of the work.
He refers to Sir Michael Tippett's Third Symphony in which two readily recognisable sections of Beethoven's Choral Symphony appear. These are then subjected to a deliberately shocking series of distortions. He sees this as a powerful artistic statement, and one which will still provokes outrage. Mr Kerry sees the remix of a few bars of the work where the music is not substantially changed, in his view as being perhaps an act of homage. He sees the use of original works, such as "Carmina Burana," in advertising, where it becomes associated in the public mind with specific images or products as involving debasement, but not Excalibur.
The respondents also relied on evidence from Mr Peter Posarnig, who operates a retail record store in Melbourne trading as "Thomas's Music". He says his store is probably the pre-eminent music store dealing in classical, jazz, contemporary classical and world music in Melbourne. The store has been operating since 1922. He has worked there as the department Manager for jazz, world or ethnic music. Previously he was a dancer and art teacher. Since December 1984 he has been the principal of the business. He listened to many of the 60 sound recordings presently available of "Carmina Burana" and points out that they vary according to individual interpretations of the conductor in relation to tempo and emphasis on sections of the orchestra. He has listened to the recording known as Excalibur, and in his view, the remix takes the bulk of the "O Fortuna" composition with minor modifications at the beginning and the end and keeps the piece substantially intact and complete. He refers to the modern dance beat known as "techno" being added. He does not see the addition as detracting form the meaning of "O Fortuna" or its dramatic intensity. Mr Posarnig regards the work as a sensuous and joyous composition, designed to stimulate dance and the participation of performers and the audience. He does not see Excalibur as trivialising or lowering the dignity of the work in any way because the original composition of "O Fortuna" is kept largely intact. He referred to customers who had heard the remix and who then wished to buy the original work. He estimated the requests as being in the order of 20-50 in number. He sees Excalibur as a relatively faithful rendition which extends percussion and dance beats into a more modern musical framework, bringing the work to a new audience and
extending the reputation of the work in both a commercial and artistic sense.
Evidence was adduced as to the use of the "O Fortuna" chorus, in advertisements for a range of products including Nescafé, a Michael Jackson concert, an Arnold Schwarzenegger film and an advertisement for Sea World. In addition, the theme has been used in films such as "The Doors", "The Omen", "Excalibur" and advertisements for other films. Some of these were authorised, and some were unauthorised. The chorus has been licensed in respect of advertisements for "Old Spice" and "Nestle" products and for modern versions of the work such as that by Ray Manzarek.
The submission is made that these usages, authorised or unauthorised, have served to debase, the original "O Fortuna" chorus by association. It is submitted that these associations are relevant in determining whether the Excalibur version is a debasement. Insofar as the advertisements, films and sound adaptations are licensed, it is suggested that these indicate a lack of concern on the part of the copyright owner or that the owner does not perceive them as debasements.
In my opinion, the exercise in the present case, should not be approached along the lines of a product defamation case or on the premise that the work has been diminished by association with these advertisements, films and adaptations. The fact that on a future hearing of the work a listener is plagued with visions of Nescafé coffee beans, Arnold Schwarzenegger or Michael Jackson does not necessarily mean that the work is to be regarded as already diminished or debased.
Conclusion
The considerations which, in my view, are important in this case are as follows:
•The legislative history indicates that substantial similarity or even similarity is not the determining factor.
•The 1968 Copyright Act shows a move to a more value-based standard, that is to say from "substantially similar" to "debase".
•The exception provided for in subs55(2) is not concerned with providing any artistic rights to the author as such but with the rights of the copyright owner.
•The question whether an adaptation "debases" "Carmina Burana" is one on which both expert and non-expert members of the community may vary greatly. Therefore, it is not appropriate to take a narrow analytical view based on a minute comparison of the adaptation with the work. The exercise calls for a broad approach.
•The evidence discloses strong divergence in the views of the musical experts such as Mr Meale, Mr Toop and others.
•On balance, I prefer the reasoning and views advanced by Mr Toop and the other witnesses relied on by the respondents, to that of Mr Meale and Mr Grimshaw. Mr Meale, I thought, although advancing a reasoned and tenable artistic viewpoint, took a narrower view on the question than that called for by the subsection. I felt that his approach was too strongly influenced by his vocation as a composer of classical music. Mr Grimshaw is a director and long-time employee of the second applicant. He perceives a loss of artistic expression and appears to disapprove of the "techno" treatment per se. I do not think it necessarily follows that the "techno" style lowers the dignity of the original.
•The evidence indicated that there had been no reduction reflected in the value of the copyright in the work as a result of the Excalibur remix. Indeed, such evidence as there was, was to the effect that sales of the original work had been increased although some of this may have been due to a new André Previn interpretation.
•The evidence did not indicate any widespread perception of reduction in quality, rank or dignity of the work as a result of Excalibur. In particular Mr Meales'
appreciation of the work increased since the release of Excalibur.
•There was some evidence that the adaptation may have stimulated interest in the work.
•Excalibur preserves substantial and essential elements of the original intact, communicates a powerful exuberance and rhythmic character quite consistent with the character of the work.
Having regard to the cumulative weight of the evidence and the above considerations, I am satisfied that the Excalibur adaptation does not debase the work within the meaning of subs55(2) of the Act.
Accordingly, I dismiss the application with costs.
I certify that this and
the preceding thirty-two (32)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.
Associate:
Date: 26 November 1996
Counsel for Applicant: Mr D K Catterns QC
Solicitor for Applicant: Banki Palombi Haddock & Fiora
Counsel for Respondent: Mr A J Sullivan QC
Ms A H Bowne
Solicitor for Respondent: Aroni Colman
Date of Hearing: 7 November 1996
Date Judgment Delivered: 26 November 1996
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