Well Versed In Copyright Law: Court Makes Vineyard Pay For Its Robust Breaches

In 1999, Australia's premier flautist, Jane Rutter, entered into a marketing arrangement with a Margaret River wine producer, Brookland Valley. Their agreement was simple: She gave them the right to put her name and music on the labels of 90,000 bottles; they had the right to exploit her brand. In 2006 Ms Rutter brought proceedings against Brookland Valley Vineyard to stop them from exploiting her name and music on the wine labels of its Verse 1 range, outside of their arrangement. The Court has recently confirmed that an artist's name and musical work is valuable property and Brookland Valley's conduct constituted 'flagrant disregard' of Ms Rutter's copyright. The Court sought to punish Brookland for that conduct in a judgment that is important for businesses that use other people's intellectual property

Turning wine into money

Jane Rutter is Australia's premier professional flautist. Between 1989 and 2007, Ms Rutter has released a number of high selling albums in Australia and overseas. Ms Rutter is also a composer. In late 1992, Ms Rutter composed and wrote onto a piece of manuscript, a melody she called 'Blo'. In mid 1993 Ms Rutter wrote a complete musical piece based on the melody, 'Blo'. Ms Rutter's fourth album was entitled 'Blo' and was released in 1996. The album included an arrangement of 'Blo'.

Brookland Valley Vineyard produces the Verse 1 brand of Margaret River wine. In 1999, Brookland Valley approached Ms Rutter to, amongst other things, provide them with the manuscript of an original composition for reproduction on the labels of its Verse 1 range of wine. Ms Rutter gave Brookland Valley the first three staves, or, 12 bars, of her original composition, 'Blo'. These 12 bars of 'Blo (Pan's Song)' represent the crux of the melody.

The front label of the wine bottles depicted the first 12 bars of 'Blo', which was renamed 'Blo (Pan's Song)' to fit in with Brookland Valley's leitmotiv, the Greek God, Pan. The back wine label featured the words, 'Pan's Song written by Jane Rutter'.

The agreement between Ms Rutter and Brookland Valley was that Brookland Valley had a license to reproduce the first 12 bars of 'Blo (Pan's Song)' on 90,000 bottles of its Semillon Blanc and Cabernet Merlot varieties, for a period of 12 months. As part of the deal, Brookland Valley was allowed a six month sell off period. The agreement was not renewed at the end of that 12 month period.

Ms Rutter held up her end of the deal, Brookland Valley did not.

In spite of the agreement not being renewed, Brookland Valley went ahead and continued to reproduce Ms Rutter's composition on the labels of the wine bottles- and it did so with gusto. Brookland Valley reproduced Ms Rutter's music, first the 12 bar composition, and then from 2006, a shorter, 4 bar version. The infringement occurred until well into 2007, without Ms Rutter's agreement, and on over 6 million bottles of wine! Then, in 2006, when the label was changed to depict only four bars of 'Blo (Pan's Song)', Brookland Valley removed Ms Rutter's name from the back label of the bottles, such that she was not even attributed authorship of 'Blo (Pan's Song)' – something which is very important to any artist.

Wine of the wrath of God

The Court thought Brookland Valley's conduct constituted a breach of Ms Rutter's copyright. The Court found that Ms Rutter was the author of 'Blo (Pan's Song)' and that she was the owner of the copyright in 'Blo (Pan's Song).

As such, the Court was able to find that the Verse 1 labels produced by Brookland Valley from 1999 until around 2007, which featured Ms Rutter's music and name, constituted the reproduction and publishing of a substantial part of Ms Rutter's original musical work and that such conduct was in breach of Ms Rutter's exclusive right to publish her work under the Copyright Act.

The Court went further in this case to say that Brookland Valley's flagrant disregard of Ms Rutter's rights for a period of over eight years compelled the Court exercise its discretion under the Copyright Act to award Ms Rutter additional damages. This was done to deter others, who may contemplate reproducing an artist's work without their permission.

The lesson to be learned from this case is that intellectual property and the exploitation of that property is a valuable and important business matter. If you think you have the right to reproduce a musical work on a commercial product, make sure you understand the terms of the agreement you have reached with the author of that work. Be very, very careful that you do not exploit that work mercilessly. It may just give you the hangover from hell!

For more information, please contact:

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.