Sound-alikes: How Close To The Sun Can You Fly Following The Kookaburra Case?

Can you use two bars of music without permission? While the question may seem straightforward, the answer following the Federal Court's decision of Larrikin Music Publishing Pty Ltd v EMI Songs Publishing Pty Ltd [2010] FCA 29 ("Kookaburra Case") is not. Consider, for instance, the famous opening song of Star Wars. The first two bars are easily one of the most recognisable melodies. It invokes various emotions of heroism, adventure and exciting galactic voyages. Indeed, the use of it would most likely constitute an infringement of copyright law. However, if you slightly tweak this piece of music, does it still infringe copyright? If not, how far do you need to tweak it until you are safe?

For television production teams, ring-tone producers and musicians, the issue of whether their sound-alike infringes copyright is coming into the spotlight. "Sound-alikes" can be heard everyday on television, on the radio and on ring-tones. They generally mimic a commonly found tune and aim to invoke a similar emotion and reaction from an audience. Some even "mash-up" two different hits to create an apparently new result. Given their commonality, the critical question becomes how legally "sound" are these libraries of sound-alikes?

The Kookaburra Case

In the Kookaburra Case, Jacobson J was asked to determine if two bars of the Australian iconic composition titled "Down Under" infringed the copyright of another iconic Australian song, "Kookaburra sits in the old gum tree." The question became therefore: was "Down Under"...