Decision on Larrikin Records vs. EMI

The Federal Court of Australia found in favour of Larrikin Music Publishing Pty Ltd (Larrikin) in a decision handed down by Jacobson J. The matter centred around whether Australian band Men at Work¹s song Down Under contained a flute solo that infringed the copyright of the Australian children¹s song Kookaburra (sits in the old gum tree), published by Larrikin.

The Federal Court of Australia found in favour of Larrikin Music Publishing Pty Ltd (Larrikin) in a decision handed down by Jacobson J.

The matter centred around whether Australian band Men at Work’s song Down Under contained a flute solo that infringed the copyright of the Australian children’s song Kookaburra (sits in the old gum tree), published by Larrikin.

The matter involved assessing evidence from Down Under’s composers, musical specialists and an analysis of the notes making up both musical phrases

Conclusions reached by Jacobson J that relate to the copyright infringement include the following

• The 1979 and 1981 recordings of Down Under infringe Larrikin’s copyright in Kookaburra as both recordings reproduce a substantial part of Kookaburra
• The above decision does not amount to a finding that the flute riff is a substantial part of Down Under, or that it is the ‘hook’ of that song

The details as to costs and damages are to be decided at a later date.

For more information, including a detailed musical analysis of the two phrases, see the judgment in full at http://www.austlii.edu.au/au/cases/cth/FCA/2010/29.html.