Music Copyright Infringement - Circumstantial Standard.

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20 July 2020
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In the U.S. the circumstantial evidence that is generally submitted addresses access and substantial similarity. In the U.S. substantial similarity may be both quantitative and qualitative; the general emphasis, however, is usually on the qualitative measure. In Australia and in the the Larrikin music copyright infringement of music case, implicating the members of Men a Work and the Kookaburra song written by Marion Sinclair, the court seemed to apply a more quantitative test. Not only did the infringing composition have to be qualitatively similar but also, I believe, the court required that a substantial portion of the original work need be taken. Tat seems to distinguish U.S. from Australian law. The two bars determined to be taken did not comprise a large portion of Men at Work's but was "a substantial portion of Sinclair's work. Is that the usual standard of substantial similarity in Australia? Can someone tell me the source of that applicable standard? Statute? Judicial opinion? Thank you.
 

Tim W

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"Law Professor" ?

As one law academic (who happens to work in the field)
to purportedly another,
kindly DM me with your details (which I won't publish),
and we'll start there.
 
20 July 2020
2
0
1
"Law Professor" ?

As one law academic (who happens to work in the field)
to purportedly another,
kindly DM me with your details (which I won't publish),
and we'll start there.
Forgive me, but I am new to this site. Thus, I do not know if I am able to respond individually. If so, perhaps you might give me some direciton on that matter so I can inquire more fully. Meanwhile, following is a bit more of my questIon/context. I teach in the areas of copyright and also international entertainment law. In attempting to compare the treatment of "substantial similarity" in copyright infringement matters under U.S. law with the similar attribution under Australian law, I am struck by the characterization by Australian courts and commentators that there must be a taking of a substantial portion of the claimed infringed work in order for the appropriation to be actionable. When applied or further analyzed, courts and commentators in Australia seem to, proximate with the general characterization, as above, almost immediately qualify that statement by observing that substantial appropriate is not limited to a quantitative measure alone but can also include a qualitative assessment. In attempting to compare the principles of substantial similarity in the U.S. and substantial taking in Australia, I intuitively perceive quite a divverence between the two principles. One could say that if a creative contribution consists of a single arpeggiated chord, for example, and even if it is distinctive, that taking such in Australia would not be substantial notwithstanding its identifiability while such has been deemed actionable in the U.S. In the U.S. the quantum matter is usually addressed under the standard of de minimus taking. Of course, myriad theories of the de miniums standard may incorporate considerations of substantial similarity, fair use, judicial economy etc. I'm just trying to discover if the two standards (U.S. and Australia) are only distinct in verbiage or whether there is actually a difference, no matter how subtle it may be.
 

Tim W

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The differences are profound, yes.
We're better, because, while there are certain exceptions,
we do not provide a safe harbour for infringers purporting to be creatives
the way the US does.

You're right to think that Australia does not quantify in the way that he US does (we don't have a "ten percent rule" as such).
The question of "substantial" also TYPICALLY rules out the "one chord is enough" question.

The highest profile modern case is of course the "Kookaburra case" - EMI Songs Australia Pty Limited & Anor v Larrikin Music Publishing Pty Ltd [2011] HCATrans 284
 

Tim W

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Thing is, a label may not worry too much about one act ripping off another - when the label ('s publishing arm) owns both the works in question.
 

Scruff

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The Kookaburra case is a good example here. From memory, it came down to around 11 musical notes that were used in the flute riff. That's hardly a substantial portion of the original song.

But the problem arises out of how the riff was used in the later song - repeatedly and as a dominant feature due to the instumentation used. The result was that the riff is the later song's most recognisable feature. So it's not just the content itself, but how it is used and what the result is of that usage. In this case, it was deemed to be substantially similar because of how recognisable the riff was. But because it consisted of such a small part of the original song, the damages awarded were only 5% of the defendent's earnings for the song. So while the judgement indicates that the songs are substantially similar, the damages appear to be more reflective of the actual portion of the original song that was used. (The plaintiff was seeking 40-60% of earnings.)

So in Australia, it's not always about what portion of the original work was copied. How it is used can play a big part in the decision even if the portion is only very small and on it's own, wouldn't be considered substantial.