Kookaburra still up the gum tree, but judge feels disquiet

In February, in "The kookaburra wins down under", Ben posted this note on the Australian ruling that Men at Work copied Larrikin Music’s song Kookaburra Sits in the Old Gum Tree, written by Marion Sinclair in 1934, in their composition and recording Down Under. There's a neat note here from Australian law firm Allens Arthur Robinson (here) on the dismissal of Men at Work's appeal by the Full Court of the Federal Court in EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47.

A case note from another Australian law firm, Davies Collison Cave, focuses on the following comment of Emmett J, in which he expressed some disquiet concerning the finding of infringement:

"If, as I have concluded, the relevant versions of Down Under involve an infringement of copyright, many years after the death of Ms Sinclair, and enforceable at the behest of an assignee, then some of the underlying concepts of modern copyright may require rethinking. While there are good policy reasons for encouraging the intellectual and artistic effort that produces literary, artistic and musical works, by rewarding the author or composer with some form of monopoly in relation to his or her work (see Ice TV at [24]), it may be that the extent of that monopoly, both in terms of time and extent of restriction, ought not necessarily be the same for every work…".

The kookaburra wins down under

An Australian Court has found that Men at Work did copy Larrikin Music’s song Kookaburra Sits in the Old Gum Tree, written by Marion Sinclair in 1934, in their composition and recording Down Under. Down Under record company Sony BMG and publisher EMI Songs Australia had disputed the claim but today the Federal Court ruled in Larrikin's favour and Larrikin Music's lawyer Adam Simpson welcomed his win saying it was yet to be decided what percentage of earnings from the song they'd be seeking commenting “It depends. I mean anything from what we have claimed which is between 40% and 60% and what they suggest which is considerably less”. The judge also ruled that a Qantas advertisement which used a small similar section of the riff was not in breach of copyright laws. EMI said it was pleased with this decision but Larrikin Music's has said that it wasn't ruling out further legal action. In an interview with ABC Australia’s The World Today programme music lawyer Stephen Digby said he was surprised by the court's decision saying “ think it could have gone either way but my initial reaction and also looking at this case my initial reaction following it has always been that this is going to be a very hard case for Larrikin to win” adding “it is certainly an identifiable and discernable piece within the song but as a gut feel, my gut feel was that it was probably not a substantial, sufficiently substantial in the song as a whole. Clearly the judge disagreed with me” and Digby says that he is looking forward to seeing the judgment in full and “I'm hopeful that in that he might give us guidance on what he considers to be a considerable, a substantial part or not.” The judge in the case, Justice Peter Jacobson, ruled on the matter saying: "I have come to the view that the 1979 recording and the 1981 recording of 'Down Under' infringe Larrikin's copyright in 'Kookaburra' because both of those recordings reproduce a substantial part of 'Kookaburra'. I am also of the view that Larrikin is entitled to recover damages ... for the infringements". He added: "I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of 'Down Under' or that it is the 'hook' of the song. Over in the USA a mighty mighty row is brewing over Black Eyed Peas' smash hit Boom Boom Pow - with a new claim that the song infringes Phoneix Phenom's Boom Dynamite. if you know your rice from your peas take a look at www.youtube.com/watch?v=0O0q_xBu2IQ and make up your own mind.

http://www.abc.net.au/worldtoday/content/2010/s2810101.htm