Vandenburg, Johannas Hendriks Jacob (known as Harry Vanda) v Aday, Michael Lee (known as Meatloaf)

[1997] FCA 7

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )        No NG 818 of 1996
GENERAL DIVISION                 )

BETWEEN:

JOHANNAS HENDRIKS JACOB VANDENBURG (known as Harry Vanda)
  First Applicant

GEORGE REDBURN YOUNG
                   Second Applicant

J ALBERT & SON PTY LIMITED (ACN 000 026 513)
  Third Applicant

AND:

MICHAEL LEE ADAY (known as Meatloaf)
  Respondent

CORAM:Lindgren J

PLACE:Sydney

DATE:17 January 1997

REASONS FOR JUDGMENT

(ex temporare)
INTRODUCTION
The substantive proceeding is for infringement of copyright in two musical works and two literary works, namely the music and lyrics of two songs written jointly by the first applicant ("Vanda") and the second applicant ("Young").  The two songs are "Good Times" and "Running the Red Light".  The third applicant ("Albert"), a corporation registered in New South Wales, claims to be the assignee from Vanda and Young of the world-wide copyright in the composition, "Good Times", including its title, music and words. 

The applicants move ex parte by notice of motion filed on 7 January 1997, which I made returnable instanter, for leave to
serve the amended application and amended statement of claim upon the respondent ("Aday") outside the Commonwealth and in the United States of America.  The application is made under O 8 of the Federal Court Rules.

ORDER 8 OF THE FEDERAL COURT RULES
Sub-rule 2 (2) of O 8 provides that the Court, may grant leave to serve an originating process outside the Commonwealth under O 8 where the Court is satisfied of the following matters:

"(a)that the proceeding is a proceeding in which the Court has jurisdiction;

(b)that the proceeding is a proceeding to which rule 1 applies; and

(c)that the applicant has a prima facie case for the relief which he seeks; ..."

Sub-rule 2 (3) of O 8 provides that the evidence on a motion for leave shall include evidence showing in what country or place the person to be served is, or probably may be found, and whether that country is a convention country or a non-convention country.  There is evidence, if somewhat weak, that the applicants' solicitor spoke to Don Engel in the United States of America on 12 November 1996 when Mr Engel, after identifying himself as an attorney acting for Aday, said words to the effect that Aday resided in the United States.  There is evidence also that the solicitor for the applicants telephoned an officer of the Attorney-General's Department in Canberra who informed her that the United States of America is not a convention country.  Accordingly, sub-r 2 (3) is satisfied.

I return to sub-r 2 (2) of O 8.  The Court is given jurisdiction in relation to infringement of copyright under the Copyright Act 1968 by s 131C of that Act. Accordingly, para 2 (2) (a) of O 8 is satisfied.

It remains to consider the matters referred to in paras 2 (2) (b) and (c).  I will deal with the prima facie case issue (raised by para (c)) first, and then the issue in relation to r 1 (raised by para (b)).

FACTS AND FINDINGS
The amended application which was filed on 7 January 1997 seeks the following three declarations:

"1.A declaration that the Respondent's musical work RUNNING FOR THE RED LIGHT reproduces a substantial part of the Third Applicant's copyright musical work GOOD TIMES and the First and Second Applicants' copyright musical work RUNNING THE RED LIGHT.

2.A declaration that the Respondent's literary work RUNNING FOR THE RED LIGHT reproduces a substantial part of the First and Second Applicants' copyright literary work RUNNING THE RED LIGHT.

3.A declaration that the Respondent has infringed:

(a)the Third Applicant's copyright in the musical work GOOD TIMES;

(b)the First and Second Applicants' copyright in the musical work RUNNING THE RED LIGHT; and

(c)the First and Second Applicants' copyright in the literary work RUNNING THE RED LIGHT."

As well, the amended application seeks an injunction, damages and an order for delivery up.

The present proceeding has been prompted by the selling of recordings of a song which is track number five on a compact disc entitled "Welcome To The Neighbourhood" by "Meat Loaf".  "Meat Loaf" is the name under which Aday performs as a singer.  Track five of the compact disc is a song called "Runnin' for the Red Light". 

There is affidavit evidence of the applicants' solicitor, on information and belief, that Vanda and Young wrote the music and lyrics of "Good Times"  and "Running the Red Light".

There is evidence in a similar form that no consent or licence was given by any of the applicants to the reproduction by Aday of either of the works, "Good Times" and "Running the Red Light".

The evidence of infringement takes various forms.  First, there is evidence that a particular copy of the compact disc, "Welcome to the Neighbourhood", which has been tendered in evidence, was brought in Sydney on 17 December 1996 by a clerk employed by Harper Watson, the solicitors for the applicants.  The booklet which accompanied that compact disc states that the "vocals" of track five are by "Meat Loaf" and that the "music & lyrics" are by "Vanda, Young, Meat Loaf, Russo, Durkee".  It also records on the back page that in respect of track five, the control of copyright is in "J Albert & Son".

There is evidence from Richard Toop, Chair, Musicology Unit, Sydney Conservatorium, in the form of a letter from him to the solicitors for the applicants, that as a matter of first impression, the music of "Runnin' for the Red Light" is a copy of the music written by Messrs Vanda and Young and that two lines of the lyrics are a copy of lyrics written by them, while the remainder of the lyrics is by others. 

There is also evidence in the form of a review in the Daily Telegraph of Thursday, June 13 1996, that the song "Runnin' for the Red Light" is actually the song "Good Times" with the words changed.  The newspaper review includes the following in relation to "Meat Loaf":

"One thing is for sure.  He must be stopped before he pillages other such classics.  Meat Loaf has never smelled ranker and tasted more leaden."

Finally, there is evidence of an account in an Australian magazine called "The Drum Media" of an interview with Aday.  According to the report, Aday referred to his having been sent a copy of a previously recorded song of Vanda and Young (apparently "Good Times") followed by a copy of their "Running through [sic] the Red Light" and said that he wrote new lyrics and used modified extracts from both of the Vanda and Young songs, to come up with the song, "Runnin' for the Red Light."

In relation to the "prima facie" case requirement of para 2 (2) (c), I raised with the solicitor appearing for the applicants when the motion was before me on 7 January, the fact that the evidence then before the Court might not establish that there was copyright in the works under the Australian Act.  A further affidavit filed in Court this morning has supplemented the evidence in this respect.  There is now evidence on information and belief from the applicants' solicitor:

(a)that Vanda and Young jointly wrote the musical and literary work, "Good Times", in the United Kingdom in about mid 1967 and that it was first published in the United Kingdom on or about 18 July 1967;

(b)that Vanda and Young jointly wrote the musical and literary work, "Running the Red Light" in or about May 1995 in the United Kingdom and that it has not yet been published by anyone authorised by Vanda or Young;

(c)that Vanda was in 1967 and continues to be a citizen of The Netherlands;

(d)that Young was in 1967 and continues to be a citizen of Australia; and

(e)that Albert was in 1967 and continues to be a corporation registered in Australia.

There is also evidence that by an agreement in writing dated 3 July 1967, Vanda and Young assigned the copyright in "Good Times" to Albert.

It suffices to say, without referring to all of the individual provisions, that sub-ss 32 (1) and (2), 184 (1) (a) and (c), and 211 (1) and (2), together with sub-regs 4 (1) and (3) of the Copyright (International Protection) Regulations, and the specification of "Netherlands" and "United Kingdom of Great Britain and Northern Ireland" in Schedule 1 to those Regulations, satisfy me that on the evidence to which I have already referred, prima facie the applicants have copyright in the music and lyrics of "Good Times" and "Running the Red Light" under the Australian Act.

In the light of all the evidence, I am satisfied, on a prima facie basis, that infringement by Aday of that copyright is established, and that the applicants have a case for the relief which they seek.  Accordingly, para 2 (2) (c) of O 8 is satisfied.

This brings me to the requirement of para 2 (2) (b) of O 8 which refers to rule 1 of O 8.  In my view, paras 1 (h) and (j) are applicable in the present case.  It may be arguable that other paragraphs also apply but I am satisfied that those
two paragraphs apply.  They are as follows:

"Subject to rule 2 and Divisions 2 and 3 of this Order, originating process may be served outside the Commonwealth in the following cases:

...

(h)where the subject matter of the proceeding, so far as concerns the person to be served is property in the Commonwealth;

(i)........ ........ ........ ........ ........ ......

(j)where the proceeding is for an injunction as to anything to be done in the Commonwealth or against the doing of any act in the Commonwealth, whether damages are also sought or not;. . . "

In the present case, the copyright is property in the Commonwealth by virtue of the operation of the provisions of the Copyright Act 1968 (Cth) to which I have previously referred. The injunction sought in the amended application is expressed in general and unqualified terms can be described as one "against the doing of any act [the exclusive right to do which is comprised in the copyright] in Australia".

CONCLUSION
The motion succeeds.  Accordingly, the orders of the Court are as follows:

1. That the applicants be granted leave to serve the amended application and amended statement of claim upon the respondent outside the Commonwealth and in the United States of America;

1. That the costs of the motion be part of the applicants' costs of the proceeding.

I certify that this and the preceding 8 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Date:17 January 1997

Heard:            7, 10 January 1997

Place:            Sydney

Decision:         15 January 1997

Appearances:      Ms B J Beckley, solicitor of Harper Watson, appeared for the applicants.