Rutter v Brookland Valley Estate Pty Ltd [2009] FCA 702

Australian flautist Jane Rutter recently won a copyright infringement case against a Western Australian winery, Brookland Valley Estate. In 1999 Ms Rutter licensed Brookland Valley to print part of her musical composition, "Blo", on the labels of bottles in its new "Verse 1" wine range, for a $35,000 fee. Brookland Valley's use of "Blo" was limited to 90,000 bottles of two varieties of wine only.

Despite the 90,000 bottle limit being exceeded within the first 12 months, Brookland Valley continued to use labels featuring 12 bars of Ms Rutter's musical work until August 2007, by which time it had been used on more than 5 million bottles of five different varieties of Verse 1 wine. A revised version of the labels was used from January 2006 which featured only 4 bars of Ms Rutter's music, but did not attribute Ms Rutter as composer. Ms Rutter sued Brookland Valley for copyright infringement in April 2007.

Justice Buchanan held that Brookland Valley had infringed Ms Rutter's copyright by continuing to use Ms Rutter's composition on Verse 1 labels for at least 7 years after the copyright licence had expired. The music printed on the labels was held to be a "substantial part" of Ms Rutter's musical work as those bars contained "the crux of the melody". Justice Buchanan also held that Ms Rutter's moral rights had been infringed as Brookland Valley failed to attribute her as the composer from January 2006 onwards.

Justice Buchanan ordered Brookland Valley to pay $208,684 in compensatory damages (based on a royalty of 2 cents for each bottle exceeding the initial 90,000 bottle limit), plus interest of $84,693. Bottles that had been produced and sold outside the 6-year limitation period were excluded from the damages amount. Brookland Valley was also ordered to pay $150,000 in additional damages given its "unsatisfactory and flagrant disregard" of Ms Rutter's rights for approximately 8 years.

The decision serves as an important warning to copyright licensees to be vigilant in ensuring that copyright licences are adhered to. If circumstances change or if a copyright work is used beyond the expiry of a licence, the licence terms should be re-negotiated or renewed.