The kookaburra gets the last laugh

Larrikin Music’s 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 “Kookaburra sits in the old gumtree” was infringed by the well-known Men at Work song “Downunder”.

Two bars of the four bar round “Kookaburra” were reproduced in “Downunder” albeit they were in a different key and were separated by the basic “hook” of “Downunder” (or attractive part of the song).

These elements of “Kookaburra” were found in the flute riff of “Downunder” and were found three times in various forms in “Downunder”. 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 “Kookaburra” was a substantial part of that work.

Jacobson J held that there was sufficient objective similarity between the bars of “Kookaburra” and the part where they are heard in “Downunder”. 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 “Downunder” was “unmistakably” the melody of “Kookaburra”. 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 “Kookaburra” unrecognisable. Furthermore, Jacobson J did not consider that the separation of the two phrases from “Kookaburra” by the basic hook of “Downunder” prevented a finding of reproduction.

The respondents argued that, if “Kookaburra” and “Downunder” 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 “Spicks and Specks”. The judge concluded that whilst “Spicks and Specks” showed that there are difficulties in the recognition of the “Kookaburra” in “Downunder”, 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 “Downunder”’s flute riff, who was not called as a witness, deliberately reproduced a part of “Kookaburra” for the purpose of evoking an Australian flavour in the flute riff.

In relation to the question of whether a substantial part of “Kookaburra” was taken, Jacobson J considered that “Kookaburra” was not so simple or lacking in substantial originality that a note for note reproduction of the entire work was required to meet the “substantial part” test. He did, however, place great weight on the fact that one of the respondents, Colin Hay, performed the words of “Kookaburra” when performing “Downunder” from 2002 onwards, to show that a substantial part was taken. This seems strange when Jacobson J accepted Mr Hay’s evidence that he was not aware of the appropriation of the bars of “Kookaburra” until the mid 1990s. His Honour did, however, note that 50% of “Kookaburra” 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.