EMI Songs Australia Pty Limited & Anor v Larrikin Music Publishing Pty Ltd; EMI Songs Australian Pty Ltd & Ors v Larrikin Music Publishing Pty Ltd

The dispute before the High Court of Australia concerned copyright infringement claims brought by EMI Songs Australia Pty Limited and others (the appellants) against Larrikin Music Publishing Pty Limited (the respondent). The core of the litigation revolved around allegations that the song "Down Under" by Men at Work infringed the copyright of the children's song "Kookaburra Sits in the Old Gum Tree."

The High Court was required to determine whether the appellants had infringed the copyright of the respondent in "Kookaburra Sits in the Old Gum Tree" by incorporating a substantial part of that song into "Down Under." This involved assessing whether the musical elements allegedly copied constituted a substantial part of the respondent's copyright work, and if so, whether such use was authorised.

The Court found that the appellants had indeed infringed the copyright. Applying the principles of copyright law, the Court concluded that the distinctive flute riff in "Down Under" was a substantial part of "Kookaburra Sits in the Old Gum Tree." The reasoning focused on the originality and distinctiveness of the copied musical phrase, which was found to be a significant and recognisable element of the original work. The Court rejected arguments that the copying was trivial or that the appellants had an implied licence to use the material.

Consequently, the High Court ordered that the appeal be dismissed, upholding the decision of the Full Federal Court that found copyright infringement.