Winery of the Year dealt a “Blo” by the Federal Court
The Federal Court in Rutter v Brookland Valley Estate Pty Limited [2009] FCA 702 has ordered that Brookland Valley (the 2009 James Halliday Winery of the Year), pay a substantial sum in damages to Ms Jane Rutter, a prominent Australian flautist in respect of her claim for copyright infringement.
The case concerned the release by Brookland Valley in 1998 of a new brand known as the “Verse 1” range. Key to the brand concept was music and the association between Pan, as a flautist (the image and story of which is strongly connected to Brookland Valley) and Ms Rutter. Pursuant to this concept Brookland Valley reached an agreement with Ms Rutter which included the composition of an original piece of music (which she titled “Blo”), the production of a number of CDs, various performances and interviews by Ms Rutter and the sale of wine with a label which featured, in the first instance, three staves of music, each of four bars, of Ms Rutter’s original composition.
Ms Rutter claimed that her copyright as author of “Blo” was infringed when Brookland Valley continued to reproduce the score of the melody without her permission after the expiry of the 12 month licence. The Court agreed, finding that the Verse 1 labels reproduced a substantial part of Ms Rutter’s original musical work and awarded Ms Rutter $293,377 in compensatory damages and interest.
The Court also found that the disregard of Ms Rutter’s rights by Brookland Valley was unsatisfactory and flagrant and awarded Ms Rutter additional damages of $150,000 pursuant to s 115(4), stating that:
The agreement which Brookland Valley made with Ms Rutter was itself breached virtually immediately with the introduction of a new variety of wine. It was then breached when the agreed volumes were exceeded. Disregard of her rights continued after the expiry of the contract. Mr and Mrs Jones [as managing director and marketing manager respectively] took what they wished from the arrangement with little apparent regard for Ms Rutter’s entitlements and legitimate interests. Mr Jones’ failure to honour the bargain which he had made with Ms Rutter or take any step to address her rights may not be dismissed as simple carelessness on his part…
This decision provides yet another example of a copyright owner successfully using s115(4) to receive an award of damages which significantly exceed the amount required to compensate for damage suffered and reinforces the benefits of including a claim to additional damages in any action for infringement.