10.24 Depending on the facts of any particular case, existing exceptions may apply to some transformative uses. Most obviously, the Copyright Act provides that fair dealing for the purposes of criticism or review; and parody or satire, do not constitute an infringement of copyright.
10.25 However, not all uses that might be classed as transformative will be parody, satirical or critical. Sampling, mashups or remixes will not usually fall within the scope of these exceptions and such uses will constitute infringement when a substantial part of the work or other copyright subject matter is used.
10.26 In EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (the Kookaburra case), for example, EMI’s recordings of the Men at Work song ‘Down Under’ were found to have infringed the copyright in the song ‘Kookaburra Sits in the Old Gum Tree’.
10.27 The Kookaburra case confirmed existing law that, in order to establish infringement of copyright in a musical work, it must be shown that a substantial part of it has been copied. Determining what is substantial in this context depends on whether what is reproduced is a ‘substantial, vital and essential part of the original’.
10.28 Australian law may not be as clear in articulating how the notion of a ‘substantial part’ will apply to the sampling of sound recordings. In particular, there are concerns that courts may follow approaches in the US, which suggest that any copying of a sound recording may amount to an infringement of copyright.
10.29 Professor Kathy Bowrey observed that, while the Australian Copyright Act arguably lends itself to a similar narrow interpretation, the High Court of Australia has suggested a narrow and legalistic approach would lead to the over-protection of subject-matter other than works—including sound recordings.The High Court, in considering the appropriate scope of copyright protection of a television broadcast, reaffirmed the importance of keeping separate the concepts of substantial part and fair dealing. This means that copying does not constitute an infringement, and the defences of fair dealing do not come into operation, unless a substantial part is copied.
10.30 Finally, some transformative uses may infringe an author’s moral rights under pt IX of the Copyright Act. For example, in Perez v Fernandez, the Federal Magistrates Court held that a mashup involving only a few words mixed into a song was prejudicial to the artist’s moral right of integrity. Allowing new transformative uses of copyright materials may lead to more frequent assertion of moral rights.
Copyright Act 1968 (Cth) ss 41, 103A.
 Ibid ss 41A, 103AA.
EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444.
 Ibid, –.
 B Fitzgerald and D O’Brien, ‘Digital Sampling and Culture Jamming in a Remix World: What Does the Law Allow?’ (2005) 10(4) Media and Arts Law Review 279.
 In Bridgeport Music Inc v Dimension Films Inc, the US Court of Appeals held that even where a small part of a sound recording is sampled, then the part taken is something of value, and will therefore infringe copyright: Bridgeport Music Inc v Dimension Films Inc, 410 F 3d 792 (6th Cir, 2005).
 K Bowrey, Submission 94.
Network Ten Pty Ltd v TCN Channel Nine (2004) 218 CLR 273, .
 The three moral rights in Australian law are: the right to be attributed as the author; the right against false attribution; and the right of integrity, that is, the right not to have one’s work treated in a derogatory way: Copyright Act 1968 (Cth) pt IX.
Perez v Fernandez  FMCA 2 (10 February 2012).