In the Australian copyright infringement case of Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited, the dispute centered around the use of a flute riff in the famous Men at Work song “Down Under.” Larrikin, which owned the rights to the song “Kookaburra Sits in the Old Gum Tree,” claimed that the flute riff in “Down Under” was copied from their song without permission.
In 2010, the Federal Court of Australia ruled that Men at Work had indeed copied the flute riff from “Kookaburra” and that Larrikin was entitled to a portion of the royalties from “Down Under.” Justice Peter Jacobson stated in his ruling, “The key to resolution of this case is the conclusion I have reached that the 1979 recording of ‘Kookaburra’ was in fact an original work of Ms. Sinclair’s creation and was not, as had been submitted on behalf of Larrikin, a traditional or folk song.” He added that the use of the flute riff in “Down Under” was a “sufficiently significant part” of the song that it constituted copyright infringement.
Expert opinions were also taken into consideration during the case. Musicologist Stephen Banfield testified on behalf of Larrikin and argued that the two songs were “strikingly similar.” On the other hand, musicologist Dr. Ron Sadoff, who testified on behalf of Men at Work, argued that the use of the flute riff was a common technique in music and that it was not a unique element of “Kookaburra.”
Following the ruling, Men at Work’s lead singer, Colin Hay, expressed disappointment, stating that the flute riff was a “spontaneous” addition to the song and was not intentionally copied. Larrikin, however, argued that the use of the riff was deliberate and that Men at Work had ample opportunity to seek permission before including it in their song.
The case was appealed by Men at Work, but the appeal was denied in 2011. The Federal Court found that the original ruling was correct and that the use of the flute riff constituted copyright infringement. Justice Arthur Emmett stated in his ruling, “The trial judge was correct in finding that the flute riff was a substantial part of ‘Down Under,’ and that it was therefore an infringement of copyright.” The court also ordered EMI to pay an additional 15% of Larrikin’s legal costs incurred during the appeal.
Overall, the case demonstrates the importance of obtaining permission before using someone else’s creative work and the potential legal consequences for failing to do so. It also highlights the role of expert testimony and the weight it can carry in copyright infringement cases.