Glass Candy's familiarity with Love
124 There is some debate about the timing of the next step in Glass Candy's creation of Warm. The background to that debate is the need to be able to identify when Mr Padgett first heard Love and in what circumstances. Mr Padgett's evidence at s80 was that he had not heard Love until an evening at a Portland club called Rotture shortly before the release of the September 2011 Commercial Recording and, importantly, after he had completed work on its vocal melody. However, an email and article about Glass Candy suggest that Mr Padgett had heard Love by 2007. Mr Padgett denied that this was the effect of these materials and it is therefore necessary to assess the matter.
125 On 16 January 2008 Mr Padgett sent an email to a Mr Byrne. As will be seen, Mr Byrne was the author of an article entitled 'Glass Candy: Mystical Death Disco' which was published online in a publication known as XLR8R. This article was a piece on Glass Candy which was written in a playful and relaxed manner, referred to them by their stage names Johnny Jewel and Ida No, and was intended to convey that it was the result of an interview with them. For example, at one point it says this:
Straining across the couch to grab a silver-blue Christmas tree bulb, Johnny explains, "The songs are like this; the songs are made from the reach." And the reaching is endless - the two estimate that've only met perfectly in the middle of the songwriting process less than 10 times (in over 10 years).
126 At the end of the article there is a section headed 'Ida's Tape for Johnny' which is a list of songs for Mr Padgett ostensibly crafted by Ms Monahan, each of which is accompanied by a jocular remark about the significance of the song for Mr Padgett. Thus:
Diana Ross "Do You Know Where You're Going To"
Do we know where we're going to? Hell is not an actual place that force outside yourself sends you to - it's a state of mind. We learned this together. I'm so glad everyday we decide to keep smiling, no matter what life is showing us.
127 Following this list there then appears a similar list of songs headed 'Johnny's Tape for Ida'. The significance of Mr Padgett's email to Mr Byrne of 16 January 2008 is that it contains both of these lists. The reference in the interview to Mr Padgett grabbing a silver-blue Christmas tree bauble suggests to me that Mr Byrne's interview was conducted in the preceding December in 2007. In the email, one of the songs on Johnny's Tape for Ida is entitled '"LOVE IS IN THE AIR" > MIKE SIMONETTI'S WHITE LABEL VERSION'.
128 As the article itself explained, at this time Mr Padgett ran IDIB with Mr Mike Simonetti. Mr Byrne did not publish his article until 11 March 2008. When it was published the two lists were identical to those in Mr Padgett's email except that instead of saying '"Love is in the Air" (Mike Simonetti's White Label Version)' it now read 'John Paul Young "Love is in the Air" (Mike Simonetti's White Label Version)'. Mr Padgett denied that he had told Mr Byrne that what he had in mind was the John Paul Young performance of Love. His evidence was that Mr Byrne must have added that information himself or that it had been added by an editor somewhere between the email on 16 January 2008 and the publication of the article on 11 March 2008. Mr Padgett had to say this to maintain the apparent truthfulness of his clear evidence that he had not heard of Love until 2011.
129 His explanation raises the question of why he had referred to 'Love is in the Air' as a song on Johnny's Tape for Ida when he did not know Love. His explanation was that he had picked up the song title 'Love is in the Air' from a blog on the IDIB website dated 2 January 2008 which, so Mr Padgett said, had been written by Mr Simonetti. This piece was a report of Mr Simonetti's performance as a DJ at a New Year's Eve party at the end of 2007 at Rubulad, an underground club in Brooklyn (which, I am informed, has since permanently closed). The relevant portion is as follows:
A HAPPY NEW YEAR MIX FOR YOU
Happy New Year from the Italians crew. all reports from San Francisco were that the Glass Candy New Years Eve blowout was indeed a blowout and it was full of New Years madness. Wish i was there.
But I had my thing at Rubulad and it was pretty crazy. Also apologies for those of you who came out late to see me and left when the cops came. After they left we started up and went well into the late morning. Next time I play Rubulad I'll put you on the list and buy you a drink, so email me (you know who you all are).
ps: the midnight NYE tune was "Love is in the Air"…
Anyway, to celebrate the arrival of 2008, we offer you a mix by our own Qlint, who happens to be in TIEDYE. Our pal Pilcoski of Dirty Edits fame posted it on his blog and we are sending you to his website to grab it. Its a zshare file so you can stream it live or download it. The mix is pretty great. Look out for the third track, which is a Tiedye edit of Tom Petty "Dont Come Around Here No More". Its an Italians favorite!
(Errors in original.)
130 The hypothesis Mr Padgett's evidence requires one to embrace is that he included 'Love is in the Air' on Johnny's Tape for Ida not ever having heard the song and not knowing to what it was a reference. Why would he do this? Mr Padgett's evidence was that Mr Simonetti's blog had omitted the identity of the performer of 'Love is in the Air' quite deliberately. Here the thinking was that DJs like to play music the origins of which are unclear to their audience. In that endeavour it was important for Mr Simonetti not to let on that 'Love is in Air' had been performed by John Paul Young as the mystery of its actual origins gave him a competitive edge over other DJs. Viewed in this way, the fact that Mr Simonetti had let on that the piece was called 'Love is in the Air' but had not gone so far as to disclose the identity of the performer was, Mr Padgett thought, 'a wink, like a coded sort of Easter Egg'. That evidence is consistent with the ellipsis in the blog 'ps: the midnight NYE tune was "Love is in the Air"…'
131 The competitive edge explanation and Mr Padgett's evidence that it was a 'wink' or an 'Easter Egg' are not, however, consistent. There are two problems. First, if keeping the origin of tracks really was a question of competitive edge in the DJ market, it would not be profit-maximising to disclose, even by way of hint, those origins. Secondly, in 2008 it was a trivial matter for a person to look up 'Love is in the Air' on Google and immediately to see that it was performed by John Paul Young.
132 Mr Padgett's evidence that it was a 'wink' or 'coded sort of Easter egg' makes a little more sense to me. On that view, Mr Simonetti was playing a game with his audience. I should say for completeness that Mr Padgett accepted under cross-examination that he now knew that Mr Simonetti had been playing the John Paul Young performance of Love but he testified that he found this out only subsequently to the creation of Warm.
133 In any event, accepting either of those explanations for Mr Simonetti's decision not to include the name of John Paul Young in the blog does not throw any light on why Mr Padgett would himself decide to include in his list the name of a song he had not heard and did not know on Johnny's Tape for Ida. There were several other songs mentioned in Mr Simonetti's blog. Indeed, at the end of the blog he proffered for the reader a tape mix of 14 songs as follows:
TRACK LISTING FOR YOU:
1. Fabio Frizzi & Giorgio Cascio - Zombie Attack
2. Mythos - When the Show Just Begun
3. Tom Petty - Don't Come Around (Tiedye dub-version)
4. Paul McCartney - Check My Machine
5. A Mountain of One - Ment Goes Nothing
6. Klaus Schulze - Tango-Saty
7. Brigade Mondaine - Generique
8. Joe Cocker - Sweet Little Woman (12" Mix)
9. SKY - Westway
10. Crosby Stills & Nash - Dark Star
11. Peter Green - In the Skyes
12. Cat Gang - Locomotive Breath (Special Rock Version)
13. It's Immaterial - Driving Away From Home
14. B. B Band - All Night Long (Instrumental Version)
134 Mr Padgett was pressed on why he decided to include on Johnny's Tape for Ida the name of a song which he did not know or thought was not real rather than one he did and knew to be real. Here Mr Padgett's explanation was that he had not mentioned any of those tracks in Johnny's Tape for Ida because none of them was a track mixed by Mr Simonetti. Mr Padgett says that he listed Mr Simonetti's 'white label' version of 'Love is in the Air' in Johnny's Tape for Ida because Mr Simonetti was increasingly frustrated that his career as a DJ was not taking off. In that regard, by referring in the list to a version of 'Love is in the Air' which was Mr Simonetti's 'white label version' he was intending to convey a connotation that Mr Simonetti was a DJ who was a renegade or rebel with it being Mr Padgett's intention of 'trying to promote him as this sort of muscular DJ in the sense, like, cool.'
135 It is then useful to return to the remarks Mr Padgett made about '"LOVE IS IN THE AIR" > MIKE SIMONETTI'S WHITE LABEL VERSION' appearing on the list he provided to Mr Byrne in his email. The comment on the song was in these terms:
this is written on ida's oxygen tank she keeps backstage. when mike spins records at our shows…he always plays this song, and hot chocolate. ida immediately lights up, and starts doing this fucked up dance. i can't describe it. it's like clockwork. since we made the rule that glass candy members had to be air signs. it's been smooth sailing.
(Errors in original.)
136 The second line and third lines of this suggest that Mr Simonetti had played Love as a DJ at shows at which Glass Candy had performed, indeed, more than once and that Ms Monahan had danced to it, I take it with some enthusiasm. It is an unavoidable deduction from Mr Padgett's evidence that this statement cannot be correct on the account he has given. On Mr Padgett's evidence Mr Simonetti could not have played Love at Glass Candy performances and Ms Monahan most assuredly could not have danced to it. Yet Mr Padgett gave other evidence that Mr Simonetti had played sets with Glass Candy several times and in 2007. So on this view of the facts, the statement that Mr Simonetti had played with Glass Candy would not be false, merely the statement that he always played Love at these performances. Mr Padgett's explanation for this is that it was a joke about 'DJ culture'.
137 Finally, it is useful to set out the full list of songs on Johnny's Tape for Ida laid out in Mr Padgett's email to Mr Byrne:
"I DREAM OF JEANIE THEME SONG" > TV SHOW DEMO "ROW, ROW, ROW YOUR BOAT" > TRADITIONAL LP VERSION "I WISH I WERE AN OSCAR MEYER WIENER" > COMMERCIAL PEEL VERSION "SILENT NIGHT" > TRADITIONAL CHRISTMAS 12" EDIT "LOVE IS IN THE AIR" > MIKE SIMONETTI'S WHITE LABEL VERSION
138 The first four songs on this list are certainly famous in at least the limited sense that even I have heard of them. The same is true of all of the songs in Ida's Tape for Johnny (which included hits such as Survivor's 'Eye of the Tiger' and the theme song for the Benny Hill Show). Mr Byrne's article sought, by its inclusion of Ida's Tape for Johnny and Johnny's Tape for Ida to have Mr Padgett and Ms Monahan give some light-hearted insight into their respective personalities and their relationship. The point of each song on the lists was to provide the occasion for a brief, and often humorous, account of the other performer's personality. An implication may be open that this objective would not be achieved if the relevant musical reference was to a song which was unknown to the person painting the picture or, on Mr Padgett's evidence, was not real.
139 Having explained Mr Padgett's evidence and its implications, it is then necessary to assess whether it is an account which ought to be embraced. To do so it would be necessary to accept all of the following propositions:
(1) Although as at 16 January 2008 Mr Padgett did not know Love and had not heard it, he nevertheless included a song by the same name as a joke on a list of songs he designed for Ms Monahan.
(2) Although Mr Padgett accepted that Mr Simonetti had played sets with Glass Candy many times and in 2007 he included in his comment on the song the joke statement that Mr Simonetti always played Love on those occasions and that when this occurred, Ms Monahan had lit up and danced to it, this was because he obtained the reference to the song from a blog written by Mr Simonetti dated 2 January 2008 and did not know what song Mr Simonetti was talking about.
(3) Although he did not know whether the song was a real one, Mr Padgett included the song on Johnny's Tape for Ida because he was seeking to bolster Mr Simonetti's career as a DJ which was not going as well as it might.
(4) He did not inform Mr Byrne that the performer of 'Love is in the Air' was John Paul Young and the source of the reference to him in Mr Byrne's article was either Mr Byrne himself or an editor of XLR8R.
140 As to (1), it seems to me unlikely that he would include a song on Johnny's Tape for Ida that he did not know or a statement that Mr Simonetti had performed Love with them when he had not. Humour is a personal matter of course but Mr Padgett's evidence that he had been joking when he said that Mr Simonetti had played Love at Glass Candy sets and that Ida had provocatively danced to it suffers from the problem, at least from my perspective, that it is not especially funny.
141 As to (2) and (3), it is, I suppose, also possible that Mr Padgett had decided to increase the muscularity of Mr Simonetti's career as a DJ. And it may be possible too that he did so by combing the IDIB website the two of them ran together so as to find a song that Mr Simonetti had mixed and to slap on it the 'white label' moniker thereby augmenting the limping DJ's edginess. But this seems to me quite unlikely.
142 As to (4), whilst I would not dismiss as entirely impossible the idea that Mr Byrne had decided to touch up Mr Padgett's list by adding the performer John Paul Young to it, it seems to me to be a surprising thing for him, or the editor of XLR8R, to do so without first speaking to Mr Padgett. As Glass Candy's counsel pointed out during the trial there are several songs with the title 'Love is the Air' such that it is questionable how Mr Byrne could be sure, particularly given the very eclectic nature of the songs on Johnny's Tape for Ida, that Mr Padgett had not intended to refer, for example, to the song of the same title in Stephen Sondheim's revue Side by Side. And then there is the question of why Mr Byrne or the editor would wish to add Mr John Paul Young's name to the article from an editorial perspective. None of the other songs on Johnny's Tape for Ida as it appears in the article (or the email) include the name of the performer so I do not think that it can be notions of editorial consistency which could have driven Mr Byrne (or the editor) to add John Paul Young's name to Mr Padgett's joke. No other explanation obviously suggests itself for such an act.
143 Each of these matters is unlikely but not impossible. However, for Mr Padgett's evidence about this to be accepted, I would need to accept all of them for if any of them fails they all fail. I do not accept that it is remotely credible that they could all be true. I therefore conclude that they are false. I note for completeness that Mr Simonetti is a person who could have thrown light on the matter. However, Mr Padgett and Mr Simonetti have had a falling out and it seems to me that Glass Candy's failure to call him as a witness does not necessarily imply that they did not do so because they thought his evidence would not assist them. In that circumstance it is not appropriate to have regard to Mr Simonetti's non-appearance in the witness box in reaching the conclusion I have reached.
144 The implications of that conclusion are grave within the meaning of s 140(2)(c) of the Evidence Act 1995 (Cth) ('Evidence Act'). In particular, the nature of Mr Padgett's account is such that one cannot say, having rejected it, that he was mistaken or that he misunderstood some aspect of the matter. The only inference is that the evidence was given knowing it not to be true. Nor is it a casual untruth such as may slip out from time to time when speaking with difficult friends. To the contrary Mr Padgett's evidence about Johnny's Tape for Ida was a very carefully thought through and entirely pre-meditated attempt to explain away what appears to be obvious about that list.
145 I have not overlooked Kobalt's submission that the importance of the email should be downplayed. The first element in this was the suggestion that Mr Padgett would have been unlikely voluntarily to have included such damaging evidence in his affidavit, as he appears to have done. The second was that the email was too slender a basis to infer that Mr Simonetti regularly played at Glass Candy sets or that the Applicants had failed to prove that Love had been played at such events. I reject the first argument which does not engage with the contents of the email. I reject the second for largely the same reason - the email is evidence of these facts. Whilst I accept that the email is humorous, I am unable to dismiss its entire contents as a joke and I am strengthened in that conclusion by Mr Padgett's absurd evidence about it.
146 Indeed, as will be seen, Mr Padgett had strong instrumental reasons for wishing away Johnny's Tape for Ida. I conclude below that Warm was composed in 2009. The XLR8R article shows that Mr Padgett had heard Love before 2008 and that his partner in IDIB had in fact played it at Glass Candy sets. If the Court were to reject Mr Padgett's implausible evidence that the 2005 Recording was the urtext for Warm then it became vital for him to be able deny the apparent meaning of Johnny's Tape for Ida. I must conclude therefore that Mr Padgett is a witness who does not hesitate to make up elaborate evidence when it suits him. In that circumstance, it seems to me that I should not rely on any of Mr Padgett's evidence unless it is contrary to his interests or independently corroborated.
147 I therefore do not accept Mr Padgett's evidence that he had not heard Love prior to 16 January 2008. This does not, of course, mean that Mr Padgett had heard Love prior to the date; just that his evidence is of no value in assessing the correctness of that proposition. However, once his denial is removed from the picture it seems to me that Mr Padgett's email to Mr Byrne and the article allow me to infer that by 16 January 2008 Mr Padgett had certainly heard Love on each occasion that Mr Simonetti had played at performances of Glass Candy. In that circumstance, I conclude that Mr Padgett was well acquainted with Love prior to 16 January 2008.