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Federal Court of Australia FEDERAL COURT OF AUSTRALIA Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29 Citation: Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29 Parties: LARRIKIN MUSIC PUBLISHING PTY LTD (ACN 003 839 432) v EMI SONGS AUSTRALIA PTY LIMITED (ACN 000 063 267), EMI MUSIC PUBLISHING AUSTRALIA PTY LIMITED (ACN 000 040 951), COLIN JAMES HAY and RONALD GRAHAM STRYKERT EMI SONGS AUSTRALIA PTY LIMITED (ACN 000 063 267), EMI MUSIC PUBLISHING AUSTRALIA PTY LIMITED (ACN 000 040 951) v LARRIKIN MUSIC PUBLISHING PTY LTD (ACN 003 839 432) File numbers: NSD 145 of 2008 NSD 340 of 2008 Judge: JACOBSON J Date of judgment: 4 February 2010 Catchwords: COPYRIGHT – whether recordings of a musical work infringed copyright in an earlier musical work by reproducing a substantial part of the earlier work – causal connection between works not denied – objective similarity determined by aural and visual comparison of musical elements of the works – emphasis is on quality rather than quantity of what is taken – copied features must be a substantial part of the copyright work, not of the infringing work – overall appearance of infringing work may differ from copyright work. TRADE PRACTICES – whether respondents misrepresented to collecting societies that there was no infringement in the copyright work and that they were entitled to 100% of royalties from infringing work – continuing representations made by respondents to collecting societies. RESTITUTION – whether respondents were unjustly enriched at the expense of the applicant – whether mistake of fact or law was made by collecting societies – claim did not fall within recognised categories of restitution. - 2 - Legislation: Copyright Act 1968 (Cth), ss 13, 36, 115 Fair Trading Act 1989 (NSW) Trade Practices Act 1974 (Cth), ss 52, 82 Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14 cited Austin v Columbia Gramophone Co Ltd [1923] Macg CC 398 cited Australia and New Zealand Banking Group Limited v Westpac Banking Corporation (1988) 164 CLR 662 cited British Northrop Ltd v Texteam Blackburn Ltd [1974] RPC 57 cited David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353 cited Designers Guild Ltd v Russell Williams (Textiles) Ltd (trading as Washington D.C.) [2000] 1 WLR 2416 cited Drynan v Rostad (1994) 59 CPR (3d) 8 cited Dyson (Trading as Pharmacy Plus Tumut) v Pharmacy Board of New South Wales (2000) 50 NSWLR 523 cited Elwood Clothing Pty Ltd (ACN 079 393 696) v Cotton on Clothing Pty Ltd (ACN 052 130 462) (2008) 80 IPR 566 D’Almaine v Boosey (1835) 1 Y. & C. EX. 288 cited Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89 cited Francis Day & Hunter Ltd v Bron [1963] 1 Ch 587 followed Grignon v Roussel (1991) 38 CPR (3d) 4 cited IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 254 ALR 386 cited Inform Design and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd (2008) 77 IPR 523 cited Jobbins v Capel Court Corporation Limited (1989) 25 FCR 226 applied Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 followed Lumbers v W Cooks Builders Pty Ltd (in liquidation) (2007) 232 CLR 635 cited Metricon Homes Pty Ltd (ACN 005 108 752) v Barrett Property Group Pty Ltd (ACN 088 015 267) (2008) 248 ALR 364 cited MGICA (1992) Ltd (formerly MGICA Ltd) v Kenny & Good Pty Ltd (1996) 140 ALR 313 referred to Pepsi Seven-Up Bottlers Perth Pty Limited v Federal Commissioner of Taxation (1995) 62 FCR 289 cited S. W. Hart & Co Proprietary Limited v Edwards Hot Water Systems (1985) 159 CLR 466 followed Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 cited University of New South Wales v Moorhouse (1975) 133 CLR 1 cited - 3 - Wardley Australia Limited v The State of Western Australia (1992) 175 CLR 514 distinguished P. Birks, An Introduction to the Law of Restitution (1985) K. Garnett et al (eds), Copinger and Skone James on Copyright (15th ed, 2005) J.D. Heydon, Cross on Evidence (7th Australian edition, 2004) K. Mason, J.W. Carter and G.J. Tolhurst, Mason and Carter’s Restitution Law in Australia (2nd edition, 2008) Date of hearing: 27-30 October 2009 Date of last submissions: 16 November 2009 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 345 Counsel for the Applicant: Mr R.L. Lancaster SC with Mr C.D. Wood Solicitor for the Applicant: Simpsons Solicitors Counsel for the Third, Mr D.K. Catterns QC with Mr C. Dimitriadis and Mr P.A. Fourth and Fifth Maddigan Respondents: Solicitor for the Third, DLA Phillips Fox Fourth and Fifth Respondents: The Sixth Respondent did not appear. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 145 of 2008 BETWEEN: LARRIKIN MUSIC PUBLISHING PTY LTD (ACN 003 839 432) Applicant AND: EMI SONGS AUSTRALIA PTY LIMITED (ACN 000 063 267) Third Respondent EMI MUSIC PUBLISHING AUSTRALIA PTY LIMITED (ACN 000 040 951) Fourth Respondent COLIN JAMES HAY Fifth Respondent RONALD GRAHAM STRYKERT Sixith Respondent JUDGE: JACOBSON J DATE OF ORDER: 4 FEBRUARY 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The parties bring in short minutes of order to reflect the reasons given in this judgment. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 340 of 2008 BETWEEN: EMI SONGS AUSTRALIA PTY LIMITED (ACN 000 063 267) First Applicant EMI MUSIC PUBLISHING AUSTRALIA PTY LIMITED (ACN 000 040 951) Second Applicant AND: LARRIKIN MUSIC PUBLISHING PTY LTD (ACN 003 839 432) Respondent JUDGE: JACOBSON J DATE OF ORDER: 4 FEBRUARY 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The matter be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 145 of 2008 BETWEEN: LARRIKIN MUSIC PUBLISHING PTY LTD (ACN 003 839 432) Applicant AND: EMI SONGS AUSTRALIA PTY LIMITED (ACN 000 063 267) Third Respondent EMI MUSIC PUBLISHING AUSTRALIA PTY LIMITED (ACN 000 040 951) Fourth Respondent COLIN JAMES HAY Fifth Respondent RONALD GRAHAM STRYKERT Sixith Respondent NSD 340 of 2008 BETWEEN: EMI SONGS AUSTRALIA PTY LIMITED (ACN 000 063 267) First Applicant EMI MUSIC PUBLISHING AUSTRALIA PTY LIMITED (ACN 000 040 951) Second Applicant AND: LARRIKIN MUSIC PUBLISHING PTY LTD (ACN 003 839 432) Respondent JUDGE: JACOBSON J DATE: 4 FEBRUARY 2010 PLACE: SYDNEY REASONS FOR JUDGMENT - 2 - INTRODUCTION AND OVERVIEW 1 “Kookaburra sits in the old gumtree” (“Kookaburra”) is an iconic Australian round, written and composed in 1934 by Miss Marion Sinclair. It is a short musical work, being described and analysed for the purpose of this proceeding as consisting of only four bars. 2 Two of those bars are reproduced in the 1981 recording of another iconic Australian composition, the pop song “Down Under” performed and recorded by the group Men at Work. The two bars are a part of the flute riff which was added to Down Under after it was first composed. 3 The resemblance between the flute riff of Down Under and the two bars of Kookaburra did not come to the attention of the owner of the copyright in Kookaburra, Larrikin Music Publishing Pty Ltd (“Larrikin”), until 2007. Larrikin now claims that the 1981 recording of Down Under, as well as an earlier recording of that song and certain other works to which I will refer later, infringe its copyright in Kookaburra. 4 The flute riff in Down Under does not consist solely of the two bars of Kookaburra. Indeed, where it first appears in the 1981 recording, immediately after the percussion introduction, the flute riff contains only the second bar of Kookaburra. 5 The flute riff is then heard at two later points in Down Under. At those points the flute riff includes the first and second bars of Kookaburra. 6 But what must be borne in mind when considering the question of infringement is that, on each occasion when the flute riff appears in Down Under, it includes other notes which were not part of Miss Sinclair’s composition. 7 The effect of the relevant provisions of the Copyright Act 1968 (Cth) is that copyright is infringed where a person, without the license of the owner of the copyright, reproduces a substantial part of the work: see ss 10, 13, 14(1), 31(1)(a) and 36(1). 8 In order for there to be a “reproduction” within the law of copyright, there must be an objective similarity between the two works and a causal connection between the plaintiff’s - 3 - work and that of the defendant: S. W. Hart & Co Proprietary Limited v Edwards Hot Water Systems (1985) 159 CLR 466 (“S. W. Hart”) at 472. 9 The second element, namely a causal connection between the works, is not disputed by the principal respondents in these proceedings. 10 Thus, there remain two principal issues. The first is whether there is a sufficient degree of objective similarity between the flute riff in Down Under and the two bars of Kookaburra. 11 The second issue is whether, if I am of the view that there is the requisite similarity, the bars of Kookaburra which are reproduced are a substantial part of that work.
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