Australia: Dispelling the "10% change" myth of copyright infringement

Last Updated: 8 April 2011

By Tony Watson and Lisa Egan

There is a common misconception that changing a work by 10% or 20% will mean that you can avoid liability for copyright infringement. Two recent decisions of the Federal Court have confirmed that this is not the case, and that the emphasis will always be on the quality of the part of the work which has been reproduced, not the quantity.

Businesses should be aware:

  • there is no such thing as the "10% or 20% change rule" at law in assessing copyright infringement
  • courts will focus on the quality of the part of the work reproduced, not the quantity in determining infringement
  • the part reproduced need only be a "substantial part" of the original work, not the newly created work.

Under Australian law copyright infringement occurs when the whole of, or a substantial part of, a copyright work is reproduced. The term "substantial" is not defined in the Copyright Act, however in the recent decisions of EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47 (EMI Case) and Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd [2011] FCA 246 (Barrett Case), the Court has confirmed that the determination of what is "substantial" is not a quantitative assessment. In addition, while the part of the work which is reproduced must be a substantial part of the original copyright work, it need not form a substantial part of the "infringing" work.

The EMI Case

In February 2010, Justice Jacobson held that the flute riff in the recording of the song "Down Under" by Men at Work infringed Larrikin Music Publishing's copyright in the song "Kookaburra sits in the Old Gum Tree" (Kookaburra). This decision was upheld on appeal to the Full Federal Court of Australia on 31 March 2011.

The Court considered that the relevant sections of Kookaburra which were alleged to have been reproduced were the first two phrases of Kookaburra. The Court held that those two phrases constituted the essential air or melody of Kookaburra, ie a substantial part of the copyright work.

The Court then compared the relevant phrases of Kookaburra with the flute riff in "Down Under" to establish whether there was objective similarity between the two works. The appeal Court agreed with the primary judge's findings that even though there were differences between the flute riff in "Down Under" and the relevant phrases of Kookaburra in terms of the key, harmony, tempo, rhythm and even the notes, there was still a very close similarity, if not a complete identity.

The Court also held that while the Kookaburra phrases only appear in 5 out of the 93 bars which comprise the song "Down Under", and are separated from the others by material not derived from Kookaburra, copyright infringement still had occurred. The infringing phrases reproduced a substantial part of Kookaburra as a discrete whole and were recognisable in "Down Under".

The Barrett Case

Following its wins in recent years against Metricon Homes and Carlisle Homes, Barrett Property Group (Barrett) has now had a third copyright victory against Dennis Family Homes (Dennis) who was found to have copied aspects of its Seattle and Memphis house designs (Barrett Works).

The allegation of copyright infringement related only to a specific section at the rear of the Barrett houses, being a group of rooms and spaces around a covered outdoor alfresco dining area (alfresco quadrant). It was not alleged that the Barrett alfresco quadrant was exactly reproduced in any of the Dennis house plans. Indeed it was acknowledged that the corresponding Dennis alfresco quadrant included a number of different features and details. However, the Court found that the Barrett alfresco quadrant was a substantial part of the Barrett Works, and that there was sufficient similarity between the Barrett Works and the alfresco quadrant in the Dennis houses and plans to establish that infringement had occurred. The Court held that:

  • the Barrett alfresco quadrant was "both striking and distinctive" and constituted an essential or material part of the Barrett Works regarded as a whole
  • while there were differences between the Barrett Works and the Dennis house plans overall, ie in the front part of the house design and areas outside the alfresco quadrant, and also in the alfresco quadrants themselves in terms of dimension, proportion, feature and detail, there were great fundamental similarities which acted to create the same impression and ambience.

Issue to consider

Businesses must ensure that their employees and contractors are aware that reproducing even a small part of another work may constitute copyright infringement, even if there are other substantial differences between the two works. If the part of the work which is taken is the most valuable part (based on its originality or even its commercial value), then the Courts will be more likely to treat that part as important in a qualitative sense, leading to a finding of copyright infringement notwithstanding it may be only a small portion of the original work in a quantitative sense.

The long held belief by laymen that changing a work by a certain percentage, or reproducing only a small proportion of a work, would be sufficient to avoid infringement, should now be well and truly put to rest.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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