EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47

EMI has lost an appeal to the full bench of the Federal Court against an earlier ruling that Men at Work’s famous pop anthem “Down Under” infringed the copyright in an iconic Australian nursery rhyme.

The appeal

As reported previously,1 in February 2010 the Federal Court of Australia determined that "Down Under" reproduced a substantial part of "Kookaburra Sits on the Old Gum Tree" penned by Marion Sinclair and therefore infringed Larrikin Music Publishing's copyright in the musical work. The EMI companies (owner and licensee of the Down Under copyright), and Colin Hay and Ronald Strykert (composers), appealed the trial judge Jacobson J's decision on liability.

Copyright infringement and substantial part

The principal question for consideration by the appeal Court was whether the 1979 and 1981 recordings of Down Under reproduced a substantial part of Kookaburra.

On the question of infringement of copyright in a musical work, Emmett J confirmed that the correct approach is to:

  1. identify the work in which copyright subsists (copyright work);
  2. identify in the allegedly infringing work the part copied from the copyright work; and
  3. determine whether the part taken constitutes a "substantial part" of the copyright work.

The Full Court of the Federal Court consisting of Emmett, Jagot and Nicholas JJ, unanimously dismissed EMI's appeal in three separate judgements.

Full Court findings

The Full Court concluded that the first two phrases of the four-part round melody constitute a substantial part of Kookaburra and that these signature phrases of Kookaburra were reproduced in the flute riff of Down Under, albeit interspersed with other musical material.

All three members of the Full Court accepted that while it is true that the similarity remained unnoticed for 20 years, the relevant question is whether there is "objective similarity". It was not erroneous for the primary judge, a "sensitised listener", to compare the similarities between the melodies by listening to the tunes repeatedly, assisted by experts.

Notably, Emmett J expressed some "disquiet" about his findings on infringement:

If, as I have concluded, the relevant versions of Down Under involve an infringement of copyright, many years after the death of Ms Sinclair, and enforceable at the behest of an assignee, then some of the underlying concepts of modern copyright may require rethinking. While there are good policy reasons for encouraging the intellectual and artistic effort that produces literary, artistic and musical works, by rewarding the author or composer with some form of monopoly in relation to his or her work (see Ice TV at [24]), it may be that the extent of that monopoly, both in terms of time and extent of restriction, ought not necessarily be the same for every work…