Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29

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.