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right law as an institution and as a discipline was called into question.
Colin Hay has said that the ruling could restrict musical creativity: ‘It all
comes from somewhere else, so that’s why you must have in this musical
environment a robust creative domain in which to create. I think more
than anything else, it’s going to be interesting for the future whether further
litigious cases are going to come up after this precedent has been
set.’9 Just as Men at Work was an international band whose music spoke
to people far and wide, the Kookaburra case has a wider resonance for
international debates over copyright law and musical works. As a precedent,
the case will be particularly worrisome for practitioners of digital
sampling, DJ remixing, and mash-ups. The tragedy of the Kookaburra
case has highlighted the need for substantive copyright law reform in
Australia in a number of areas relating to copyright infringement, copyright
exceptions, and remedies for copyright infringement.10
Perhaps even more tragic is that the flautist, Greg Ham, who became a
primary school music teacher after his stint with Men at Work, struggled
with the aftermath of the copyright lawsuit. He died in 2012 at the age of 58
from complications related to depression and alcoholism.
1. EMI Songs Australia Pty Limited v Larrikin Music Publishing
Pty Limited, 2011 FCAFC 47 at para 19
Larrikin. See also Larrikin Music Publishing Pty Ltd
v EMI Songs Australia Pty Limited, 2010 FCA 29;
Larrikin Music Publishing Pty Ltd v EMI Songs Australia
Pty Limited, 2010 FCA 242; Larrikin Music
Publishing Pty Ltd v EMI Songs Australia Pty Limited
(No 2), 2010 FCA 698 Larrikin No 2.
2. Larrikin, supra note 1 at para 30.
3. Ibid at para 31.
4. Ibid at para 86.
5. Ibid at paras 98–100. A strong case for copyright
reform in Australia arising in part from Larrikin is
made in Matthew Rimmer, “An Elegy for Greg Ham:
Copyright Law, the Kookaburra Case, and Remix
Culture” (2012) 17:2 Deakin L Rev 385, online:
6. Larrikin, supra note 1 at para 93.
7. Larrikin No 2, supra note 1 at para 141.
8. Cameron Adams, “Men at Work’s Colin Hay Says
Down Under Lawsuit ‘Contributed’ to Death of His
Dad and Bandmate”, news.com.au (10 August
2015), online: <www.news.com.au/entertainment/
9. Sarah Dingle, “Kookaburra Rip-Off a ‘Musical Accident’”,
Australian Broadcasting Corporation (4 February
2010), online: <www.abc.net.au/news/ 2010-
10. Supra note 5 at 421 footnotes omitted.