An Elegy for Greg Ham: Copyright Law, the Kookaburra Case, and Remix Culture
(2012) 17 (2) Deakin Law Review 385-423.
39 Pages Posted: 10 Jan 2013 Last revised: 3 Jun 2014
Date Written: December 31, 2012
The ‘Kookaburra’ case was a tragic and controversial copyright dispute, highlighting the need for copyright law reform by the Australian Parliament. In the Kookaburra case, a copyright action was brought by Larrikin Records against Men at Work’s song ‘Down Under’, alleging copyright infringement of the ‘Kookaburra’ song composed by Marion Sinclair. The dispute raised a host of doctrinal matters. There was disquiet over the length of the copyright term. There were fierce contests as to the copyright ownership of the ‘Kookaburra’ song. The litigation raised questions about copyright infringement and substantiality – particularly in relation to musical works. The ‘Kookaburra’ case highlighted frailties in Australia’s regime of copyright exceptions. The litigation should spur the Australian Law Reform Commission to make recommendations for law reform in its inquiry Copyright and the Digital Economy. This article provides a critical evaluation of the options of a defence for transformative use; a defence for fair use; and statutory licensing. The ‘Kookaburra’ case also examines the question of appropriate remedies in respect of copyright infringement. The conclusion considers the implications of the Kookaburra case for other forms of musical works – including digital sampling, mash-ups, and creative remixes. It finishes with an elegy for Greg Ham – paying tribute to the multi-instrumentalist for Men at Work.
Keywords: Copyright Law, Musical Works, Copyright Term, Ownership, Infringement, Substantiality, Fair Use, Transformative Use, Statutory Licensing, Remedies, Digital Sampling, Mash-ups, Remix
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