Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited & Ors  SCA 29.
The Federal Court yesterday handed down a decision of both legal and cultural significance in a case involving two famous Australian songs: ‘Kookaburra’, by Marion Sinclair and ‘Down Under’, by Men at Work.
In this case, Jacobson J was required to consider whether the well-known flute riff from the chorus of ‘Down Under’ constituted a reproduction of a ‘substantial part’ of the earlier tune (composed some 44 years earlier for a Girl Guides Jamboree) and therefore infringed the rights of the copyright owner, Larrikin, under the Copyright Act 1968 (Cth).
The court concluded that there was ‘objective similarity’ between the two songs (a crucial step in the process to finding that infringement had occurred) (1) even though the songs were written in a different key, at a different tempo, and would not be considered similar by many members of the public(2). Jacobson J appeared to reach this view mainly on the basis of the evidence of a musicologist, who demonstrated how the transposition of the first bars of ‘Kookaburra’ into a different key, and the increase in tempo, emphasised the similarity. His Honour noted that a ‘sensitised listener’ could in fact detect the oral resemblance of the songs, giving weight (somewhat controversially) to the objective similarity.
His Honour gave considerable weight to the evidence of Mr Colin Hay, lead singer of Men at Work and third respondent. Mr Hay acknowledged that at various occasions while on tour with Men at Work he had sung the relevant passages from ‘Kookaburra’ when ‘Down Under’ reached the point where the flute riff would ordinarily be played, thus recognising the similarity (and origination) of the flute riff.
Having found that there was objective similarity between the two tunes, His Honour then considered whether a substantial part of ‘Kookaburra’ had been copied. He noted that the reproduced part of ‘Kookaburra’ was the signature aspect of that song. His Honour also referred to the (less weighty) ‘quantitative’ aspect (i.e. the amount of the song that was copied as a percentage of the total), and found that two out of four bars of music, that is, 50% of the song, had been reproduced.
Importantly, His Honour noted that neither the quantity nor quality of copying was enough on its own to establish that a substantial part of the song had been reproduced. It appears to have been these two aspects with the addition of a third - the acknowledgement by Mr Hay that he often found himself singing the words to ‘Kookaburra’ on stage, over the top of the ‘flute riff’, as a ‘tribute’ to the earlier song - that swayed his decision.
His Honour said ‘I have come to the view that the flute riff in Down Under in the 1979 recording and 1981 recording infringes on the copyright of Kookaburra, because it replicates in material form a substantial part of Ms. Sinclair's 1935 work’.
His Honour dismissed a cross-application by the defendants for unjustifiable threats of copyright infringement, and said that he would hear the parties as to the award of damages. This could easily run into the tens of millions of dollars, based on the commercial success of ‘Down Under’ and the amount of royalties the defendants (including former band members) had received over the years.
This case, while not novel in terms of its impact on copyright law, is certainly useful as it both reaffirms the test for copyright infringement, and also confirms that even the reproduction of quantitatively small parts of copyright works (in this case, a mere two bars) can constitute copyright infringement.
In light of the financial implications of this decision, and its potential impact on songwriters’ creative freedom, the decision may go on appeal, in which case the kookaburra may not have had the last laugh.
For more information please do not hesitate to contact Wayne Zappia on 9288 6931 or Daniel Butler on 9288 6714.