Of Kookaburras and Men (at Work): Copyright Infringement in Musical Works Revisited

Abstract

The untimely death of Men at Work instrumentalist, Greg Ham in April 2012 appeared to provide a tragic coda to the long running copyright infringement litigation between music publishers, Larrikin Music and band members Colin Hay and Ronald Strykert and their record company, EMI. The resolution of Larrikin Music’s claim has not however, stilled the debate over the appropriate boundary of copyright protection in the context of musical works. Rather, it has re-ignited a wide ranging debate over the proper use of copyright protection in the musical realm in the face of technological advancements and increasingly creative uses of musical phrases in other works, particularly those that employ digital sampling techniques, in mash ups and for creative remixing in both a live, DJ environment and in recording studios. Those discussions highlight the troubling implications for composers and musicians in the fallout from the Larrikin decisions. More fundamentally perhaps, the substance of the determinations in the litigation saga raise a number of questions on issues that are crucial to a musical copyright infringement enquiry – what does “original” mean in respect of a musical work?; what is the appropriate procedure for determining infringement in respect of musical works?; and what comparisons are relevant to a consistent understanding of substantial similarity in the musical context?