Don’t be an ostrich (and bury your head in the sand) – A brief look at Australasian Performing Right Association Limited v K Illusion Pty Ltd [2024] FedCFamC2G 928

In the age of constant emails, notifications, and letters, particularly demands for money, it can become easy to ignore everything, not realising that doing so may lead to costly consequences, particularly when it comes to the public performance of music.

On 19 September 2024 in the Federal Circuit and Family Court of Australia (“Court”), Judge Manousaridis handed a default judgment against K Illusion Pty Ltd (“K Illusion”), a karaoke bar and nightclub operating in Adelaide, and the company’s director for infringing Australasian Performing Right Association Limited’s (“APRA”) copyright in several songs performed by artists such as Drake and PARTYNEXTDOOR.

The Court ordered K Illusion and its director to pay APRA:

1. $56,071.75 as compensation for the loss of fees APRA would have received had K Illusion entered into a licence agreement, plus interest;

2. $70,000 as additional damages for their flagrant infringement of APRA’s copyright in those songs; and

3. $10,007.00 for its legal costs.

According to APRA’s application, K Illusion had authorised the public performance of various songs forming part of APRA’s music catalogue through karaoke and DJ performances. APRA’s catalogue encompasses “practically all musical and literary works performed throughout Australia”.[1]

APRA sent numerous emails and letters to K Illusion between January 2021 and March 2023, some of which included an offer to enter into a licensing agreement. These were all ignored.

It wasn’t until the company’s director was personally served with APRA’s statement of claim on 13 June 2023 that the director decided to contact APRA. On the same day, he emailed APRA stating that:

1. over the past years, he had received multiple music license requests and was advised to ignore them because he could not discern which companies genuinely protected the artists of the music that was played in the club;[2]

2. he questioned where the license fee would go if he agreed to pay them;

3. he received claims from different companies representing artists from Hong Kong, Taiwan and China, and he would have no business if he were to pay them all.

4. The club’s karaoke machines used a cloud-based system to stream music from a server, which he paid a subscription fee to access and was told his payment would cover all his licensing needs for artists played on the system.

Having failed to file a defence and appear at the directions hearing, the Court found K Illusion and its director to be in default and ordered they pay compensation to APRA.

The Court also found it suitable to order K Illusion and its director to each pay $35,000 to APRA as additional damages. This was because the Court found their conduct flagrant, sustained, and continuing, given that a licence agreement had been offered, and they continually ignored APRA’s demands. This emphasises the Court’s disapproval of such conduct.[3]

It may seem harsh, particularly when a number of venues are closing across Australia due to the current cost of living crisis, but venue owners and event organisers should be careful not to ignore requests for payment and letters of demand. Burying your head in the sand will not make it go away. More often than not, it can lead to additional costs and penalties.

If you’re a venue owner, event organiser, musician or DJ and have received a letter of demand, contact Hope Earle Lawyers today to speak with our talented Commercial Law team.

Read the entire case on Jade at https://jade.io/article/1090553?at.hl=copyright+music

[1] Australasian Performing Right Association Limited v K Illusion Pty Ltd [2024] FedCFamC2G 928, Schedule A

[2] Ibid [25](i)

[3] Ibid [26]