Last month, Ken Caillat, author of the memoir Making Rumours: The Inside Story of the Classic Fleetwood Mac Album (Making Rumours) and producer of the album itself, commenced copyright infringement proceedings together with his co-author Steven Stiefel against the creators of the Broadway play Stereophonic in the United States District Court in New York. The plaintiffs claim that the Broadway production’s playwright, David Adjmi, among others, infringed the pair’s copyright by stealing a host of elements from the memoir, including its plot, setting, characters and dialogue.
In this post, we take a look at this dispute through the lens of Australian copyright law, and how a similar claim might differ under our own legal regime.
What happened?
Making Rumours is the memoir of Ken Caillat, the sound engineer and coproducer for Fleetwood Mac’s Grammy-award-winning album Rumours, which he coauthored with Steven Stiefel. The memoir, which was published and registered with the United States Copyright Office in 2012, tells the story of the making of Rumours from 1976 to 1977 in California from Caillat’s point of view — primarily behind the glass of the recording studio control room.
The play Stereophonic, written by David Adjmi, opened in April 2024 and has quickly grossed more than USD 20 million. It follows a young sound engineer recording an album with a mixed-gender, five-member British-American rock band in California between 1976 and 1977. Its success has already spawned the publication of a book version. Adjmi is also reportedly seeking to adapt the play into a movie.
Caillat and Stiefel filed a lawsuit against Adjmi and the producers of Stereophonic, among others, alleging that the defendants ‘copying, reproducing, distributing, adapting the text of, performing, and displaying critical original elements of’ Making Rumours infringed their copyright in the memoir.
How would this dispute play out under Australian copyright law?
Under Australian copyright law, Caillat and Stiefel would need to prove a number of key elements to establish that copyright infringement has occurred including:
- (subsistence) the subsistence of copyright in their Making Rumours memoir; and
- (copying) that Adjmi and the other defendants reproduced the whole or a substantial part of their copyrighted work.
Ownership, the availability of defences and exceptions, and the magnitude of the loss incurred are other elements which would need to be established. In this post, however, we focus on the two key elements above as the significant disputes in the case.
Does copyright subsist in Making Rumours?
In Australia, as in the United States, copyright would subsist in a memoir like Making Rumours on the basis that the text demonstrates sufficient skill and judgment to meet the relevant threshold of originality, notwithstanding that it is non-fiction. The courts are not required to evaluate the novelty or inventiveness of the subject matter in considering this question. The copyright in both jurisdictions would also run from when the work was published in 2012 until 70 years after the deaths of its authors.[1]
Did Adjmi and the other defendants copy Making Rumours?
In Australia, as in the United States, Caillat and Stiefel would then need to prove that Sterophonic had not been created independently of Making Rumours and that some form of copying had occurred . There are generally two ways of doing this:
- (direct evidence of copying) proving that the defendant directly copied the work or a substantial part of it; or
- (inference of copying) proving that the similarities between the works and related circumstances are sufficient for the court to infer that copying has occurred.
Did the defendants directly copy Making Rumours?
According to the lawsuit, Adjmi has expressly denied directly copying any part of Making Rumours and has instead claimed that any similarities between the works are unintentional, although he has acknowledged that certain ‘iconographic elements’ among ‘other things’ were taken from other sources of information on Fleetwood Mac.
Proving direct copying can be difficult and it is common for plaintiffs to resort to relying on inference even where they suspect that direct copying has occurred.
Is Stereophonic substantially similar to Making Rumours?
Caillat and Stiefel in their claim cite several similarities between the play and the memoir, including:
- (the settings) Both works are set in the control room of record studios. They both also begin at a recording studio in Sausalito, California, and subsequently shift locations to another studio in Los Angeles.
- (the characters) The bands in both works comprise 5 members with markedly similar characteristics. Each band is led by a British male drummer (Mick Fleetwood in Making Rumours/‘Simon’ in Stereophonic), and both the American male guitarist/vocalist (Lindsey Buckingham/‘Peter’) and female vocalist (Stevie Nicks/‘Diana’), and the British male bassist (John McVie/‘Reg’) and female vocalist/pianist (Christine McVie/‘Holly’), are in the midst of break-ups during recording. Both works also feature 2 sound engineers, one of whom is promoted to the producer in the course of events and takes on the role of the protagonist (Caillat/‘Grover’).
- (scenes and dialogue) Numerous scenes also share clear parallels in discourse and action. For example, both works describe an outburst by one of the band members (Buckingham/‘Peter’) after the producer (Caillat/‘Grover’) erases a tape of a solo performance on the guitarist’s insistence, resulting in a physical altercation that is diffused by the remaining band members, with similar dialogue in both instances. They also cite Adjmi’s use of unique catchphrases from Making Rumours, including Caillat’s refrain ‘Wheels Up’. They contend that the use of these elements result in the works sharing the same story arc and similar narrative beats.
- (the themes) Caillat and Stiefel claim that Stereophonic ‘replicates’ important themes of their memoir, or in their words ‘the heart and soul’ of their work.
In relation to Caillat and Stiefel’s claims that Stereophonic ‘replicates’ important themes of Making Rumours, it is important to note that copyright in Australia exists to protect the form in which an idea is expressed in an original creative work. It does not protect the ‘central idea or theme’, or the facts or events, underlying the work but rather the ‘combination of situations, events and scenes which constitute the particular working out or expression of the idea or theme.’[2] For example, copyright protects the novel, screenplay and film, Jaws, but it does not give the novel’s original author, or the film’s screenwriters, a monopoly over stories about shark attacks.
As to the other similarities cited by Caillat and Stiefel, if it is assumed that they are recreated in Stereophonic, the question becomes whether they represent a ‘substantial part’ of Making Rumours that amounts to infringement of the copyright.
Did the defendants copy a substantial part of Making Rumours?
The term ‘substantial part’ in Australia generally refers to the quality of what is taken rather than the quantity. A small part may still be considered ‘substantial’, particularly if it exhibits a high degree of skill and judgment. The inquiry is conducted by reference to the original work, rather than the subsequent work. That is, infringement will only be found where the material that is copied forms a substantial part of the original work (in this case, Making Rumours).
What is ‘substantial’ is in Australia a question of fact and degree, to be determined according to the circumstances of each case.[3] Tests that have been developed in cases to answer this question such as:
- whether the part copied is important having regard to the work as a whole;[4]
- whether it is an essential or material part;[5] and
- whether there has been an appropriation of the essential features and substance of the plaintiff’s work.[6]
This case is complicated by the fact that the creators of the Stereophonic stage play are accused of infringing the copyright in a work of non-fiction. Works of non-fiction are, of course, protected under Australian copyright law. However, courts have not always judged works of non-fiction and works of fiction by precisely the same standards when it comes to copyright infringement.
In the leading case on non-fiction works, Ravenscroft v Herbert [1980] RPC 193, it was put to the Court that a distinction must be made between an historical work of non-fiction and a work of fiction and that:
‘what amounts to an infringement of [the copyright in a work of non-fiction], i.e. substantial reproduction, depends to a great extent upon whether all the defendant has taken is historical facts or amounts to more than that. The degree of user[sic] which would amount to an infringement is different in the case of a historical work than in the case of a work of fiction. There is more freedom to copy in the case of the historical work.’[7]
Justice Brightman accepted this position stating that ‘a historical work is not to be judged by precisely the same standards as a work of fiction’ and arguing that:[8]
‘The purpose of a novel is usually to interest the reader and to contribute to his enjoyment of his leisure. A historical work may well have that purpose, but the author of a serious and original historical work may properly be assumed by his readers to have another purpose as well, namely to add to the knowledge possessed by the reader and perhaps in the process to increase the sum total of human experience and understanding. The author of a historical work must, I think, have attributed to him an intention that the information thereby imparted may be used by the reader, because knowledge would become sterile if it could not be applied. Therefore, it seems to me reasonable to suppose that the law of copyright will allow a wider use to be made of a historical work than of a novel so that knowledge can be built upon knowledge.’
Nevertheless, while copyright law does not protect mere facts, ideas or information it plainly can protect works of non-fiction that express facts, ideas and information in original ways.[9]
Another factor that may also be relevant to this assessment is whether the defendant’s work competes with the plaintiff’s work or with a work the plaintiff may publish in the future. In this instance, Caillat and Stiefel could argue that the defendants’ stage play and the book version of the play compete with their work. They have argued in their claim that Adjmi’s plans to adapt his play into a movie would adversely affect Caillat and Stiefel’s opportunity to adapt their work into a movie.
In considering whether a substantial part of a copyright work has been reproduced, Australian courts consider the work as a whole and assess whether the part which has been copied is qualitatively substantial in the context of the overall work. The United States system, conversely, relies on a quantitative assessment, which has regard to the similarity of discrete elements in each text. In the United States, where this dispute will be heard by a jury, it may be that Caillat and Stiefel can put forward a convincing case as to the recreation of the minutiae of their memoir and hence establish infringement. In Australia, the abstract nature of the inquiry makes the conclusion on infringement difficult to predict.
Caillat and Stiefel’s claim is at least the latest opportunity for copyright lawyers and commentators around the world to consider the boundary between concept and expression in the protection of creative works. Ultimately though, it will be for the courts in the United States to determine whether Stereophonic amounts to nothing more than ‘Second Hand News’.
Featured image: ‘Music Audio’, Abigail Keenan, StockSnap, CC0 1.0 (cropped).
[1] Although copyright subsists automatically in both Australia and the United States, there are procedural differences between the jurisdictions. Because Making Rumours was registered with the United States Copyright Office upon publication, the plaintiffs receive additional benefits there, including access to statutory damages on top of other relief in the event they are successful in a United States court. In Australia, there is no registration process and the plaintiffs’ relief would be limited to an injunction and either general damages or account of profits, which are unlikely to be as significant.
[2] Zeccola v Universal City Studios Inc (1982) 46 ALR 189 at 192.
[3] SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466.
[4] See for example Nine Network Australia Pty Ltd v IceTV Pty Ltd (2007) 73 IPR 99.
[5] For example, in relation to computer programs: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.
[6] See for example Telstra Corp Ltd v Royal & Sun Alliance Insurance Australia Ltd (2003) 57 IPR 453.
[7] Ravenscroft v Herbert [1980] RPC 193 at 205.
[8] As above at 205-206.
[9] As above at 203.