EMI Songs Australia v Larrikin Music Publishing [2011] FCAFC 47 (31 March 2011) [1]
This case proves that matters of consequence do happen on television game shows. When Adam Hills, compare of the ‘Spicks And Specks’ panel show on the Australia Broadcasting Corporation (ABC) Network, posed the question as to what children's song is contained in the song Down Under?' The panellists struggled to identify the answer from the musical clips, but with some promoting they found the answer - 'Kookaburra'. It was lawyers at ten paces from there on. [2]
The principal question considered by the Full Federal Court is whether recordings of performances of an iconic Australian musical work “Down Under”, (written by Colin Hay and Ronald Strykert, and later made famous the band “Men At Work”), involved the reproduction in a material form of a substantial part of another iconic Australian musical work, “Kookaburra Sits in the Old Gum Tree” (Kookaburra), a musical ‘round’ that consists of only four bars, which was composed by Ms Marion Sinclair and published in 1934 in a Girl Guides publication as a “Round in 4 Parts”. [3]
This was an appeal against the determination by Jacobson J. that the flute riff of Down Under reproduced two bars of Kookaburra; and was the reproduction of substantial part of the copyright subsisting in Kookaburra under the Copyright Act 1968 (Cth). [4]
The appeal by EMI, the publisher of Down Under was dismissed. All members of the Full Court were on the opinion that Down Under infringed the copyright in Kookaburra, with each of the three judges provided separate reasoning for rejecting the appeal.[5] The appeal delved into the complex question of originality of a musical work the relationship of originality to the question of whether there is a substantial reproduction of a work.
This is a case of some interest to composers, publishers and fans of Men at Work and Down Under, the differing opinions range from whether it is is sampling (intentional or unintentional) of Kookaburra or merely taking the musical ideas to create a new work or, as noted by Emmett J, a quotation “by way of tribute to the iconicity of Kookaburra, and as one of a number of references made in Down Under to Australian icons.”[6]
Emmett J concurred in the decision to reject the appeal, although it was not without an expression of some disquiet at the outcome, with Emmett J commenting “one may wonder whether the framers of the Statute of Anne and its descendants would have regarded the taking of the melody of Kookaburra in the Impugned Recordings as infringement, rather than as a fair use that did not in any way detract from the benefit given to Ms Sinclair for her intellectual effort in producing Kookaburra.”[7]
But there ain’t no thing as a fair use of a musical work. It may sound like an “Aussie cliché melody” or “Irish/Australian style melody” – but this time the Kookaburra came back for a bite.
[2] An aural comparison can be found at YouTube: COMPARE! Men At Work sued over DOWN UNDER Kookaburra Girl Guides.
[3] In a quantitive assessment it is important to understand that while Kookaburra has 4 bars (as reproduced as sheet music), however as performed “as a round would involve at least seven aurally unique bars ….. The two bars of manuscript, therefore, do not represent 50% of the musical work that Kookaburra comprises.” [74].
[4] Appeal in respect of Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited (2010) 263 ALR 155; [2010] FCA 29 (4 February 2010); Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 242 (17 March 2010). The assessment of damages in Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited (No 2) [2010] FCA 698 (6 July 2010) was not the subject of this appeal. Larrikin claimed up to 50% of royalties generated by Down Under. Justice Jacobson J found the 50% claim was “overreaching, excessive and in my view unrealistic” and awarded 5%. J Jacobson J said that when calculating the percentage payable using the test of a ‘hypothetical bargain’ to determine the appropriate licence fee he had to look at the weight of "the significance of the bars of Kookaburra to the overall musical qualities of Down Under" and concluded that “the percentage interest payable is at the lowest end of the spectrum”.
[5] [2011] FCAFC 47. Emmett J at [97-98]; Jagot J at [185-227]: Nicholas J at [254] agreed with the reasons of Jagot J. A further issue of question of authorisation of infringement in relation to other works was returned to the court at first instance to be considered further.
[6] Ibid. Emmett J [99].
[7] Ibid. [101].
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