Copyright disputes involving musical works are common and highly contested. Unlike other forms of expression, music is built from a limited and shared set of elements, including scales, harmonies, rhythms, and patterns of phrasing. As a result, similarities between works are common. The difficulty lies in determining when those similarities amount to infringement.

The courts address this question through a structured set of inquiries. However, the outcome in each case depends on close examination of the works themselves. This includes an understanding of the way in which melody, rhythm, and structure interact to produce a particular musical result.

This article examines how Australian courts approach the task of assessing copyright infringement in musical works. It focuses on the principles governing objective similarity, causal connection, and substantial part, and explains how those principles are applied by reference to the musical features of the works in issue.

Statutory framework

Copyright is a form of incorporeal personal property that protects the expression of original ideas and information, rather than the ideas themselves. It confers exclusive rights to reproduce, publish, perform, communicate, and adapt a work.

In Australia, copyright generally subsists for 70 years after the end of the calendar year in which the author dies. It arises automatically upon creation and is enforced through legal action rather than registration.

Under the Copyright Act 1968 (Cth) (Copyright Act), infringement occurs where a person, without licence, does or authorises an act comprised in the copyright. In musical contexts, this most often involves reproduction.

Section 14(1)(b) of the Copyright Act provides that any reference to reproduction includes the reproduction of a substantial part of a work. In musical works, infringement will arise where a person, without licence, reproduces the whole or a substantial part of a musical work.

In practice, courts approach musical infringement through three interrelated inquiries:

• whether the works are objectively similar;
• whether there is a causal connection between the works; and
• whether the alleged reproduction constitutes a substantial part of the copyrighted work.

What is a musical work?

The Copyright Act does not define ‘musical works’. This reflects the difficulty of reducing music to a fixed legal concept. A musical work is rarely a single, unified element. Instead, it is typically comprised of several interacting components, including:

• melody: the sequence of pitched notes that forms the main identifiable theme;
• harmony: the chord structure that supports the melody;
• rhythm: the timing and duration of notes;
• structure: repetition, phrasing, and the arrangement of sections; and
• orchestration and timbre: the manner in which sounds are produced.

Courts tend to treat melody as the most important element. This is because melody is often what listeners recognise and remember. However, rhythm and phrasing can also be critical, particularly where they contribute to the distinctiveness of a passage.

The difficulty in assessing copyright infringement in musical works lies in separating protectable expression from unprotectable musical language. As recognised in G Ricordi & Company (London) Ltd v Clayton & Waller Ltd,¹ originality in music often lies in the composer’s particular treatment and arrangement of elements. A scale, common chord progression, or standard rhythmic pattern will rarely be enough on its own. The inquiry focuses on how these elements are combined to create an original, protected expression.

Objective similarity

The court must first determine whether the infringing work is objectively similar to the original work. This is a comparative inquiry, concerned with the relationship between the two works as musical compositions. Courts have consistently rejected a strict note for note comparison. Instead, the inquiry is directed to the overall musical impression created by the works.

The ordinary listener

The comparison is framed by reference to an ordinary, reasonably experienced listener. This provides an objective baseline for determining whether the similarity is perceptible in musical terms. The role of the listener is not to conduct a technical analysis. Rather, it is to impressionistically assess whether the later work sounds like the earlier work in a material respect.

However, the ordinary listener standard does not reduce the inquiry to a purely subjective, impressionistic test. It provides context in which the court evaluates the similarities identified through technical analysis.

The role of expert evidence

In identifying objective similarity, expert evidence does not replace the ordinary listener standard. Rather, it informs the court’s own evaluation.

Musical works often contain similarities (or differences) that are not immediately apparent without technical analysis. Comprehensive analysis therefore requires close attention to the underlying musical qualities in question. Specifically, courts will have recourse to expert evidence in consideration of:

• whether a passage reflects a distinctive melodic idea or generic pattern. In practice, the melody tends to be the most recognisable and distinctive part of a musical work and is therefore most likely to function as a repository of originality;
• whether the intervallic relationships between notes are replicated. Courts frequently analyse melodies in terms of intervals, which refers to the chromatic relationship of pitch between successive notes. Even where the underlying musical key of a work differs, the intervallic structure may reveal a close resemblance;
• whether rhythm and phrasing contribute to recognisability. Courts will examine how notes are grouped and timed. A melody played with different rhythmic emphasis may sound distinct, even if the pitch or intervallic content is similar; and
• whether the excerpt represents the core expressive content of the original work. This is often assessed by reference to recognisability, including whether an ordinary listener would identify the earlier work in the later composition.

The focus is on whether these elements, taken together, form a coherent musical resemblance, as opposed to isolated or coincidental points of similarity. For example, two passages may differ in key or instrumentation, yet remain objectively similar if they share the same intervallic sequence and rhythmic structure. Conversely, the presence of a few shared notes will not establish similarity where the overall melodic progression and phrasing differ.

In Francis Day & Hunter Ltd v Bron,² Wilmer LJ acknowledged significant differences in rhythm between the infringing and original works. The Court was unable to identify more than five consecutive corresponding notes. However, the various points of similarity were such that the Court concluded that there was an undoubted degree of similarity between the two works. Evidence concerning intervallic structure and melodic contour helped to demonstrate that the later work was objectively similar to the defining features of the earlier melody, even though the overall stylistic presentation differed.

Irrelevant differences

Courts also recognise that certain immaterial differences may disguise deeper similarity. Changes in:

• key;
• tempo;
• instrumentation; and
• genre/style

may change how a work sounds, but not its underlying content. Where the melodic contour, intervallic relationships, and phrasing remain intact, a finding of objective similarity may still follow.

This occurred in Boomerang Investments Pty Ltd v Padgett (Padgett),³ concerning a copyright infringement claim regarding the Vanda & Young song, ‘Love is in the Air’. The alleged infringing work was Glass Candy’s song ‘Warm in the Winter’, which was subsequently licensed and adapted for an Air France marketing campaign. In Padgett, objective similarity in melodic contour was observed despite clear differences in instrumentation, rhythm, and genre. Objective similarity is therefore best understood as a combined inquiry. It is rooted in the perception of an ordinary listener, but is informed by detailed musical analysis.

Causal connection

It must also be shown that the infringer’s work was derived from the original. This requirement of causal connection reflects the fundamental principle that copyright does not prevent independent creation. The inquiry therefore considers whether similarities between the works are the result of copying, conscious or unconscious, rather than coincidence.

Access and inferential reasoning

In most cases, causal connection is established indirectly. Courts look to whether the defendant had access to the original work and whether the nature of the similarities supports an inference of copying.

Access may be straightforward where the original work is widely known or commercially successful. In such cases, courts are willing to infer that a composer may have encountered the work, even if only casually. This becomes particularly significant where the allegedly copied part is itself simple but distinctive, as such material is more easily retained in memory.

However, access alone does not establish causal connection. The court must be satisfied that the defendant’s work is more likely than not derived from the original, having regard to the nature, specificity, and combination of musical features.

In some cases, the degree of similarity, when combined with contextual evidence, makes independent creation implausible. This was evident in Universal Music Publishing Pty Ltd v Palmer (No 2) (Palmer),⁴ which concerned an adaptation of the Twisted Sister song, ‘We’re Not Gonna Take It’ for use in a political advertising campaign. The impugned work replicated the structure, melodic contour, and lyrical cadence of the original chorus, albeit with altered words.

In Palmer, expert evidence revealed that the musical material tracked the original closely in terms of pitch relationships and phrasing. This technical similarity was reinforced by the surrounding circumstances. Those involved in producing the advertisement were clearly familiar with the original song, as there had been multiple attempts to obtain a licence prior to its creation. In that context, the suggestion of independent creation was untenable. The combination of striking musical similarity and direct evidence of familiarity made the inference of copying compelling.

Evaluating competing versions of events

Other cases demonstrate that causal connection may be more contested, particularly where prior exposure to the original work is disputed.

In Padgett, the alleged infringement included overlapping aspects of melody, rhythm, and lyrical phrasing. The inquiry required careful examination of the circumstances in which the later work was composed. Issues arose as to when the work was written, whether the composers had heard the earlier song, and how the musical ideas developed over time. The Court also considered the nature of the similarities, including whether they involved distinctive vocal lines or more general musical patterns.

In assessing these questions, the court scrutinised the credibility of the evidence. It was ultimately found that Mr Padgett of Glass Candy had given false evidence regarding when he had first heard ‘Love is in the Air’. On this basis, the Court was satisfied that a causal connection existed due to the similarities in both musical structure and expressive detail, particularly because the earlier work was well known.

This case illustrates that causal connection can be established through a combination of musical analysis and factual reconstruction. The outcome may depend as much on the plausibility of the defendant’s account as on the similarities between the works themselves.

Unconscious copying

Courts have also accepted that copying may occur without intention. A composer may reproduce a musical phrase that has been unconsciously absorbed into memory. This is especially relevant in popular music, where exposure to widely disseminated works is frequent. In such cases, the question is not whether the defendant intended to copy, but whether the similarities are best explained by subconscious borrowing rather than coincidence.

In Eight Mile Style, LLC v New Zealand National Party,⁵ the High Court of New Zealand considered whether ‘Eminem Esque’, a song composed for a political advertising campaign, infringed copyright in Eminem’s ‘Lose Yourself’. Although the composer admitted that ‘Eminem Esque’ was purposely altered from ‘Lose Yourself’, it was still held that unconscious copying had occurred due to the infringer’s familiarity with the original work.

Despite the flexibility of inference, courts remain cautious. Not every similarity will justify a finding of copying, even between works to which the defendant had access. Where similarities can be explained by common musical conventions, or where the connection between the works is otherwise weak, an inference may not be drawn.

Substantial part

Section 14(1)(b) of the Copyright Act provides that infringement does not require reproduction of an entire work. It is sufficient if a ‘substantial part’ has been reproduced.

A substantial part is not defined by length or quantity. Instead, it refers to the quality and importance of what has been taken. The inquiry focuses on whether the portion reproduced embodies the originality of the work.

Substantiality is assessed by reference to the original work, not the infringing work. A feature may be minor in the infringing composition but still be substantial because of its importance in the original work. In practice, this means that even a very small sample of the infringing work may be substantial if it captures a distinctive or essential feature of the original composition. Conversely, a larger portion of the original composition may not be substantial if it consists only of commonplace or unoriginal musical material.

This principle is reflected in a dispute between Sam Smith and Tom Petty. Petty alleged that Smith’s song, ‘Stay With Me’ infringed copyright in Petty’s, ‘I Won’t Back Down’. Specifically, the claim only concerned a single repeating three-note descending motif. Whilst the claim ultimately settled out of court, it reflects how substantiality is concerned with importance, not size.

Ultimately, determining whether a substantial part has been taken is a matter of impression, informed by musical analysis. It requires the court to move beyond surface comparison and identify whether the defendant has appropriated the expressive substance of the original composition.

In assessing whether a substantial part has been reproduced, courts examine:

• melodic contour, including the direction and shape of the melody;
• intervallic relationships between successive notes;
• rhythmic patterns and phrasing;
• the interaction between melody and harmonic structure; and
• repetition and placement of musical phrases.

The decision in Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd (Larrikin)⁶ illustrates this analysis. Larrikin concerned a copyright infringement claim that the Men at Work song, ‘Land Down Under’, appropriated the melody of Marion Sinclair’s nursery rhyme, ‘Kookaburra Sits in the Old Gumtree’.

The impugned flute riff in Down Under was relatively brief and appeared only intermittently in the overall composition. Whilst recognisable, it did not dominate the song as a whole.

However, when analysed in musical terms, it was found that the riff reproduced the distinctive melodic attributes and intervallic structure of Kookaburra Sits in the Old Gumtree’s central phrase. When reduced to its basic structure, the later work reproduced the same sequence of intervals that defined the earlier song’s most recognisable phrase.

The relevant passage was also described as the part that ‘sticks in your head’.⁷ This reflects a broader tendency to consider whether the allegedly copied material represents the core identity of the work. It was the combination of these qualities, rather than its prominence in Land Down Under, that led the court to conclude that a substantial part had been reproduced.

However, this analysis is rarely straightforward. In the United States, the case of Griffin v. Sheeran⁸ (concerning a claim by Marvin Gaye’s estate that Ed Sheeran’s ‘Thinking Out Loud’ infringed copyright in Gaye’s ‘Let’s Get It On’) took six years of litigation. It was ultimately held that the chord progression and harmonic rhythm used in ‘Let’s Get it On’ was commonplace and not protectable. Sheeran’s expert adduced evidence of over thirteen songs predating ‘Let’s Get It On’ using the same chord progression and identified the chord progression in at least two guitar textbooks.

This outcome emphasises the strict requirement of originality beyond common, shared musical elements to amount to a substantial part.

Next steps

Assessing infringement of copyright in a musical work is an inherently complex task. Whilst the Copyright Act provides a statutory foundation, its practical application depends on close and careful engagement with the musical substance of the works in question. The analysis is grounded in how melody, rhythm, and structure operate within each composition.

The established inquiries of objective similarity, causal connection, and substantial part provide a structured framework of analysis. Each requires a detailed and context‑specific assessment, informed by both factual circumstances and musical analysis. The outcome often turns on subtle distinctions, including how particular musical elements are arranged, perceived, and understood.

As demonstrated in case law, infringement may arise from the appropriation of a brief but distinctive musical phrase, yet fail where more extensive similarities reflect only shared conventions or stylistic overlap. For those involved in creating, exploiting, or advising on musical works, the critical point is that infringement cannot be assessed at a superficial level. It is ultimately a question of careful analysis on a case-by-case basis.

HWL Ebsworth’s intellectual property team has extensive experience in advising businesses regarding copyright infringement and other intellectual property rights. If you are concerned about copyright infringement in musical works, please contact us for further information on how we can assist you.

This article was written by Luke Dale, Partner, and Jasper Dowdell, Graduate.

¹[1928] 1 Ch 539.
²[1963] Ch 587.
³[2020] FCA 535.
⁴[2021] FCA 434.
⁵[2017] NZHC 2603.
⁶[2010] FCA 29.
⁷Ibid 20 [121].
⁸(S.D.N.Y, No 21‑cv‑5835, 4 May 2023).