EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47

FEDERAL COURT OF AUSTRALIA

EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47 Citation: EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47

Appeal from: Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited (2010) 263 ALR 155; [2010] FCA 29 Larrikin Music Publishing Pty Ltd (ACN 003 839 432) v EMI Songs Australia Pty Limited (ACN 000 063 267) [2010] FCA 242

Parties: EMI SONGS AUSTRALIA PTY LIMITED (ACN 000 063 267), EMI MUSIC PUBLISHING AUSTRALIA PTY LIMITED (ACN 000 040 951) v LARRIKIN MUSIC PUBLISHING PTY LIMITED (ACN 003 839 432)

EMI SONGS AUSTRALIA PTY LIMITED (ACN 000 063 267), EMI MUSIC PUBLISHING AUSTRALIA PTY LIMITED (ACN 000 040 951) and COLIN JAMES HAY v LARRIKIN MUSIC PUBLISHING PTY LIMITED (ACN 003 839 432) and RONALD GRAHAM STRYKERT

File number(s): NSD 183 of 2010 NSD 350 of 2010

Judges: EMMETT, JAGOT AND NICHOLAS JJ

Date of judgment: 31 March 2011

Catchwords: INTELLECTUAL PROPERTY – infringement of copyright in musical works – whether recordings of a musical work infringed copyright in an earlier musical work by reproducing in material form a substantial part of the earlier work INTELLECTUAL PROPERTY – infringement of copyright in musical works – approach to be taken in determining question of infringement – assessment of originality and substantial part in context of musical works – identification of part of copyright work that manifests its originality – whether limitation of evidence of originality to composition of copyright work as a round meant that performance as a round was required in order for infringement to be made out – whether copying musical ideas and commonplaces that are not themselves original can constitute infringement – whether air or melody taken was substantially the same as the original INTELLECTUAL PROPERTY – infringement of copyright in musical works – objective similarity between copyright work and alleged infringing work – causal connection between copyright work and alleged infringing work – degree to which determining objective similarity depends on aural perception and expert evidence – whether part taken from copyright work is required to constitute a substantial part of alleged infringing work INTELLECTUAL PROPERTY – infringement of copyright in musical works – applicability of principles from compilation cases – whether finding of animus furandi was required in order for infringement to be made out INTELLECTUAL PROPERTY – subsistence of copyright in musical works – development and history of copyright in musical works – balance of competing public interests in extending copyright protection to musical works – extent to which musical scores and recordings are coterminous with musical works they represent INTELLECTUAL PROPERTY – infringement of copyright in musical works – whether alleged infringers of copyright in a musical work authorised further infringements of copyright in that work by the grant of licences PRACTICE AND PROCEDURE – circumstances in which appellate court will revisit conclusions of primary judge – whether primary judge applied an erroneous principle or was plainly and obviously wrong