Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited & Ors [2010] FCA 29

Justice Jacobson of the Federal Court of Australia last week ruled that the iconic Australian pop song “Down Under”, performed and recorded by the group Men at Work, reproduces a substantial part of the children’s song “Kookaburra sits in the old gumtree” (“Kookaburra”) and infringes the copyright owned by Larrikin Music Publishing Pty Ltd.

In reaching the conclusion that the flute riff in the “Down Under” composition was a substantial reproduction of “Kookaburra” (a short musical work consisting of four bars), Justice Jacobson considered the musical elements of melody, key, tempo, harmony and structure. With the assistance of expert evidence, he also compared the aural musical elements and the visual features of the notated music.

Despite differences in key, harmony and structure, the Court found that there was a sufficient degree of objective similarity between the “Down Under” flute riff and the bars of “Kookaburra” which are seen and heard in “Down Under” to amount to reproduction of a part of “Kookaburra”. In this regard, the Court found that the melody from “Kookaburra” was still recognisable.

Secondly, the two bars of “Kookaburra” found to be reproduced in “Down Under” were held to be a substantial part of “Kookaburra” because of the significance of the part taken. Whilst the experts considered that the two bars taken were the “signature” of the song, the Court did not necessarily consider that this would, of itself, be sufficient to give rise to a finding that what was taken was a substantial part of the copyright work. However, it was persuasive to the Court that one of the lead signers of Men at Work, Mr Hay, sang the relevant bars of “Kookaburra” when performing “Down Under” live at a number of concerts in pubs and bars. His Honour therefore considered a substantial part of “Kookaburra” to have been taken.

The question of what percentage of income from “Down Under” should be paid to Larrikin following the finding of copyright infringement will be determined by the Court at a later hearing. The respondents have 21 days from the date of judgment in which to file any appeal.

In the interim, the decision serves as a reminder that substantial reproduction is a qualitative, and not quantitative, assessment. In addition, an original work may nevertheless constitute an infringement of copyright if it can be objectively found to encapsulate a substantial part of another work.

The judgment has sparked significant debate about what is the nature of copyright and creative expression that can be protected and both the music industry and lawyers alike will await with interest the result of any appeal.