## Facts

- Larrikin Music Publishing Pty Ltd held copyright (by assignment) in the 1934 musical round “Kookaburra Sits in the Old Gum Tree” (“Kookaburra”).
- Men at Work’s song “Down Under” was written around 1978; a band member later added a flute riff to the song.
- “Down Under” was recorded and released in 1979 and again in 1981, achieving significant commercial success.
- Larrikin alleged the flute riff reproduced two bars from “Kookaburra,” and that the 1979/1981 recordings and certain commercial uses infringed its musical-work copyright.
- Industry registrations and declarations allocated 100% of “Down Under” royalties to the respondents and asserted the work did not infringe any other copyright.
- Earlier proceedings resolved that Larrikin owned the relevant copyright as between the parties; this judgment addressed infringement and alleged misleading conduct, leaving monetary relief for later determination.

## Issues

1. Whether the flute riff in “Down Under” reproduced a substantial part of “Kookaburra” (requiring objective similarity and a causal connection showing copying rather than independent creation).
2. Whether statements to collecting societies claiming 100% entitlement to royalties and non-infringement constituted misleading or deceptive conduct.
3. Whether claims for damages or related relief were barred by limitation due to the timing of the representations.

## Decision

- The court held the flute riff reproduced a substantial part of “Kookaburra,” and the 1979 and 1981 “Down Under” recordings infringed Larrikin’s copyright.
- The court found a sufficient degree of objective similarity between the riff and two of the four bars of “Kookaburra,” and found copying (causal connection) on the evidence.
- The court held the respondents’ representations to collecting societies that they were entitled to 100% of proceeds and that the work did not infringe any other work were misleading or deceptive.
- The court rejected the limitation/time-bar argument at this stage, allowing the damages claim to proceed.
- The court emphasized that its finding concerned substantiality of the portion taken from “Kookaburra,” and did not determine that the riff was a substantial part or the “hook” of “Down Under.”
- Quantification and allocation of proceeds were deferred to later proceedings.

## Legal Principles

- Copyright infringement of a musical work requires (1) objective similarity between what is alleged to be taken and the plaintiff’s work and (2) a causal connection establishing copying.
- “Substantial part” is assessed qualitatively by reference to the plaintiff’s work; even a short extract may be substantial if it is distinctive, memorable, or important within the original work.
- The substantiality inquiry focuses on the portion taken from the plaintiff’s work, not on the prominence or importance of the copied material within the defendant’s work.
- Representations allocating full royalty entitlements and asserting non-infringement can be misleading or deceptive where they conflict with the parties’ true legal rights following infringement.
- A limitation defense will fail where the court is not satisfied the claim is out of time on the facts and pleaded causes of action at the liability stage.

## Conclusion

The court concluded that copying two bars from “Kookaburra” in the “Down Under” flute riff amounted to reproduction of a substantial part of the earlier work, establishing infringement, and that the respondents’ royalty and non-infringement declarations were misleading, with remedies to be determined subsequently.


Larrikin Music Publ'g Pty Ltd. v. EMI Songs Austl. Pty Ltd., (2010) 263 A.L.R. 155 (F.C.A. 2010)