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Legal
Kookaburra publisher wins down under copyright case
By CMU Editorial | Published on Thursday 4 February 2010
Music publishers Larrikin Music have won a case in the Australian courts in which they accused Men At Work’s 1981 song ‘Down Under’ of stealing the melody from famous Aussie children’s folk tune ‘Kookaburra Sits In The Old Gum Tree’.
Larrikin won the right to fight the case after a separate court ruling last July confirmed them as owners of the ‘Kookaburra’ song. Sony Music and EMI Songs Australia, who respectively represent the recording and publishing rights in the Men At Work song, argued ownership of ‘Kookaburra’ was unclear because the song had come to popular attention when its writer, Marion Sinclair, entered it into a competition run by the Girl Guides in 1934. According to the terms of that competition the Girl Guides Association would own the rights, and Larrikin’s claim to the song came via the Sinclair estate. But the court ruled Larrikin nevertheless had ownership.
The copyright infringement dispute itself then went to court later last year, with Larrikin claiming Men At Work members Colin Hay and Ron Strykert nicked a substantial part of the ‘Kookabura’ song for the flute riff in their track. The judge hearing the case, Justice Peter Jacobson, ruled on the matter yesterday, 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”.
However, 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”. That aside could have an impact on the share of ‘Down Under’ royalties Men At Work, Sony and EMI now have to share with Larrikin, though the publisher’s lawyers say they will push for up to 60% of the loot, which sounds optimistic, but there you go. All parties are set to meet on 25 Feb to discuss a financial settlement.
Jacobson also ruled on the use of a similar section of the ‘Kookabura’ song in a Quantas ad, ruling that in that case no copyright was infringed.
