Do you come from a land down under? Where music labels are keen to plunder?
I guess my readers will excuse this little joke with Men At Work’s “Down Under” lyrics, but it fits quite good in the context of this posting. I believe it is needless to introduce “Down Under” – you hardly cannot know the unofficial anthem of Australia!
Despite its fame, since yesterday it is official – Men At Work’s song has been found to infringe the copyright in “Kookaburra”, a camp fire song written by Marion Sinclair in 1934 and currently owned by Larrikin Music Publishing Ltd Pty.
“Down Under” was written and composed in 1978 by Colin Hay and Ronald Strykert, members of Men at Work, and was first published in about 1979. In 1981 the song was re-recorded for Men At Work’s “Business as Usual” album.
In 2007 Larrikin became aware that two bars of “Kookaburra” were reproduced once in the flute riff contained in the 1979 sound recording of “Down Under” and three times in the one of 1981. Alleging that “Down Under” infringed their copyright in “Kookaburra”, Larrikin started proceedings against Colin Hay and Ronald Strykert as well as against EMI Songs Australia and EMI Music Publishing Australia, being the owner and licensee of copyright in “Down Under”. Larrikin further demanded a 60% share of the earnings “Down Under” has made since 1982.
On trial, Justice Jacobson accepted that the songs were objectively similar. Jacobson J based this finding on the cases of, inter alia, Francis Day & Hunter vs Bron and Austin vs Columbia Gramophone Co Ltd. Accordingly, objective similarity of musical works was not to be determined by a note for note comparison but by the eye as well as by the ear. Jacobson J further found that the portion reproduced in “Down Under” constituted a substantial taking from “Kookaburra”. Justice Jacobson achieved this finding referring to the judgment in Ice TV Pty Ltd v Nine Network Australia Pty Ltd, pursuant to which the determination of “substantial part” should be qualitative rather than quantitative.
Curiously, Larrikin did not claim damages for past performance on the ground of copyright infringement, but on passing off that in Australia is legislated in the Trade Practices Act of 1974 and the Fair Trading Act 1989. In these proceedings, however, the court did not assess the quantum of damages or royalties to be paid to Larrikin.
In its very recently delivered ruling, Jacobson J referred to Larrikin’s 60% demand on “Down Under”‘s earnings as “excessive, overreaching and unrealistic”. Instead, his Honour ordered EMI to pay a percentage interest amounting to 5%.
Why is this case of any relevance at all?
Access to copyright works has never been so convenient as in the information society of today. Albeit inspiring for creators of later and ostensibly independent works, such access may turn to a risk for such creators. I am convinced that this Kookaburra decision shall be a far-reaching one and shall influence the judiciary in other common law jurisdictions such as England and Wales, New Zealand and Canada. Some aspects might be persuasive also for US Justices, although I guess that this very case would be decided by an US court rather on the grounds of fair use as “Down Under” is transformative to “Kookaburra”. My message to creators would be then: be cautious, if you are keen not to infringe copyright law at your work.
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