Larrikin Musicâs claim of copyright infringement against EMI Songs, EMI Music and two former members of the band Men at Work has been successful in Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29.
On 4 February 2010 the Federal Court ruled that copyright in the 1934 round âKookaburra sits in the old gumtreeâ was infringed by the well-known Men at Work song âDownunderâ.
Two bars of the four bar round âKookaburraâ were reproduced in âDownunderâ albeit they were in a different key and were separated by the basic âhookâ of âDownunderâ (or attractive part of the song).
These elements of âKookaburraâ were found in the flute riff of âDownunderâ and were found three times in various forms in âDownunderâ. It was conceded that there was a causal connection between the two works. The main issues were whether there was an objective similarity between the two works and whether what had been taken from âKookaburraâ was a substantial part of that work.
Jacobson J held that there was sufficient objective similarity between the bars of âKookaburraâ and the part where they are heard in âDownunderâ. The melodies were the same. This was reinforced by the fact that Colin Hay, a former Men at Work member, admitted that the relevant portion of âDownunderâ was âunmistakablyâ the melody of âKookaburraâ. Jacobson J considered that nothing turned on the change of key or the difference in rhythm between the two songs. Nor did the difference in harmony make the phrases from âKookaburraâ unrecognisable. Furthermore, Jacobson J did not consider that the separation of the two phrases from âKookaburraâ by the basic hook of âDownunderâ prevented a finding of reproduction.
The respondents argued that, if âKookaburraâ and âDownunderâ are such icons, and the similarities are so strong, why did it take so long for anyone to recognise the connection. The connection was exposed on the television music quiz program âSpicks and Specksâ. The judge concluded that whilst âSpicks and Specksâ showed that there are difficulties in the recognition of the âKookaburraâ in âDownunderâ, a sensitised listener can detect the aural resemblance between the two works. One wonders whether the sensitised listener is the true audience when determining an infringement of musical copyright.
Nonetheless, supporting this finding was the fact that it was open to infer that the composer of âDownunderââs flute riff, who was not called as a witness, deliberately reproduced a part of âKookaburraâ for the purpose of evoking an Australian flavour in the flute riff.
In relation to the question of whether a substantial part of âKookaburraâ was taken, Jacobson J considered that âKookaburraâ was not so simple or lacking in substantial originality that a note for note reproduction of the entire work was required to meet the âsubstantial partâ test. He did, however, place great weight on the fact that one of the respondents, Colin Hay, performed the words of âKookaburraâ when performing âDownunderâ from 2002 onwards, to show that a substantial part was taken. This seems strange when Jacobson J accepted Mr Hayâs evidence that he was not aware of the appropriation of the bars of âKookaburraâ until the mid 1990s. His Honour did, however, note that 50% of âKookaburraâ had been taken.
This litigation is not yet concluded. The monetary compensation to which Larrikin Music is entitled is still to be determined. Larrikin Music has claimed 40-60% of the income received, which the respondents claim grossly over-reaches its entitlement. That would be an enormous sum for two bars of music.