In a judgment handed down on 6 July 2010 (Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd (No 2)  FCA 698), Jacobson J of the Federal Court ruled on Larrikin's entitlement to a share of the income collected by Australasian Performing Right Association (APRA) and Australasian Mechanical Copyright Owners Society (AMCOS). As reported in the March 2010 edition of IP Update, Men At Work's iconic pop song "Down Under" was held to have infringed the copyright in the Australian nursery rhyme "Kookaburra sits in the old gum tree" because a substantial part of "Kookaburra" is reproduced in the flute riff of "Down Under".
The Judge concluded that Larrikin is entitled to a 5% interest to the performance and mechanical income derived from the exploitation of “Down Under". Taking into account the difficulty in detecting the similarity between the flute riff and the bars from “Kookaburra”, and “Kookaburra's” contribution relative to the whole of the “Down Under” song, His Honour regarded Larrikin's claim to 25% - 50% of the total income from “Down Under” for the reproduction of two of four bars of “Kookaburra” to be "excessive, overreaching and unrealistic".
A more fulsome analysis of the decision will follow in the next edition of our IP Update.