The decision concerned allegations including breach of copyright in respect of the pop song “Down Under”, recorded in 1979 and again in 1981 by Men at Work. Both recordings feature a flute riff which the applicant, Larrikin Music Publishing Pty Ltd (“Larrikin”), claimed breached copyright held by them in the children’s musical round, “Kookaburra sits in the old gumtree” (“Kookaburra”).

Kookaburra was composed in 1934 by Miss Marion Sinclair. Composed as a ‘musical round’ (each of the four bars is sung contemporaneously by 4 separate voices), Kookaburra was donated by Miss Sinclair for use in a fundraising publication of the Girl Guides Association of Victoria. The rights to Kookaburra were purchased from the Estate of Sinclair by Larrikin in March 1990. A previous decision of the Federal Court, Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited (30 July 2009), had considered, and answered in the affirmative, whether Larrikin in fact owned the copyright. The respondents to these proceedings were two EMI companies, and former Men at Work band members Colin Hay and Ronald Strykert.

The original version of Down Under was jotted down on a notepad by one of the band’s founding members, Colin Hay, in around 1978. Men at Work formed in 1979 as a trio with Colin Hay and Ronald Strykert, accompanied by a drummer (who was not identified in the judgment). Greg Ham, a classically trained musician, joined the band in mid 1979. Ham played a number of instruments and it was he who added the flute riff to Down Under. Ham was not called by the respondents to give evidence.

Down Under was released as a B-side to the single “Key Punch Operator” in late 1979, and then again in 1981 on the “Business as Usual” album. Larrikin claimed that these recordings of Down Under, and certain other recordings of it, namely two Qantas advertisements, infringed its copyright in Kookaburra. In particular, it was claimed the flute riff in Down Under reproduces two bars from Kookaburra.

Copyright is infringed where a person, without permission, “reproduces a substantial part of the work”. In order for a ‘reproduction’ to have occurred, there must be both (a) an objective similarity and (b) a causal connection between the two works. A “casual connection” requires actual copying, and does not include substantially similar works resulting from independent work. The principal respondents were said not to dispute the existence of a causal connection between the works.

Accordingly, two issues were in dispute between the parties. First, whether there was a sufficient degree of objective similarity between the flute riff in Down Under and the two bars of Kookaburra. Second, whether the two bars of Kookaburra appearing in Down Under constituted a substantial part of Kookaburra.

Objective similarity

The giving of evidence would have been particularly colourful in this case. The question of objective similarity, per the authority in Austin v Columbia Gramophone Co Ltd, depends “to a large degree upon the aural perception of the judge and upon the expert evidence”. Accordingly, the judgment refers to vocal and musical renditions by Colin Hay and the expert witnesses using guitar and piano.

Justice Jacobsen found that a sufficient degree of objective similarity existed. In arriving at this conclusion, His Honour considered various musical elements including melody, key, tempo, harmony and structure.

Melody

Expert evidence given by both sides agreed with the resemblance of the melodies. Further, evidence given by Men at Work lead singer Colin Hay, including renditions of the Down Under flute riff on guitar, and an admission by him to singing (in substitution for the flute) the relevant bars from Kookaburra when performing Down Under during live concerts from about 2002, seemed to “answer the question beyond any real doubt” for His Honour. The respondents also submitted that His Honour had become “sensitised to the similarity between the melodies” so as to be able to hear the objective similarity between them, however this submission was ultimately not accepted.

Key

The respondents submitted that weight should be given to the differences in pitch between the melodies in Kookaburra and Down Under. However, the respondents’ expert conceded that in effect key was insignificant as “it is the relative pitches within the song which allow the listener to identify the song”. Noting that Kookaburra would “tend to be pitched to suit the voices singing it”, His Honour found that the difference in pitch between Down Under and the 1934 version of Kookaburra was of no consequence.

Tempo and rhythm

It was conceded by Larrikin that no tempo marking existed on the 1934 Kookaburra transcript. However, His Honour accepted Larrikin’s expert evidence that the tempo was more or less the same. In terms of rhythm, His Honour referred to the example given by Larrikin’s expert regarding the difference in rhythm between Chet Baker’s “Every Time We Say Goodbye” and Ella Fitzgerald’s version of the same song, and held that nothing turned on the issue of rhythm between the two songs.

Further, His Honour referred to the evidence given by Larrikin’s expert, in respect of the “slur” of the Kookaburra melody (the ends of lines one and two of the 1934 transcript which end in “tree-ee” and “he-ee” respectively) and held:

“I also accept his evidence that the “slur” is a distinctive element of the melody and rhythm of Kookaburra which is replicated in Down Under”

Harmony

The respondents submitted that the melody in Down Under was harmonised in a minor key, whereas the 1934 transcript was in a major key. However, His Honour did not accept this difference made the bars from Kookaburra unrecognisable, recognising Larrikin’s expert evidence that the “change in harmony is a bit like shining a different light on it”.

Structure

The respondent’s claimed that Down Under was both a more layered song, and, that the bars of Kookaburra which appear in it were separated by what Larrikin’s expert identified as the “basic hook”. Larrikin’s expert described the basic hook as comprising the following notes:

Click here to view the Example C: 'Down Under' basic hook.

The following example shows the relevant bars of Kookaburra (appearing at bars two and four) separated by the basic hook (at bars one and three):

Click here to view the Example E: 'Down Under' extended hook (subsequent appearances).

His Honour noted that the question of structure turned solely on the structure of the flute riff and the separation of the bars of Kookaburra by the basic hook. Accepting Larrikin’s submission that the separation of the notes by the basic hook does not make them different, but merely means the listener hears them differently, His Honour held:

“It follows in my view that the separation of the two phrases from Kookaburra are not a material difference in Down Under and their separation or punctuation by the basic hook does not prevent a finding of reproduction”

Other grounds

One of the respondents’ answers to the claim made against them was to ask the rhetorical question “if both Kookaburra and Down Under are such icons, and the similarities so strong, why did it take so long for anyone to recognise the connection?”

Reference was made to the ABC panel quiz show “Spicks and Specks”, and in particular a 2007 program in which panel members were asked to identify the Australian nursery rhyme that the Down Under flute riff was based on. The panel members had difficulty in recognising the link although after the host said “this bit especially”, the link was made.

Notwithstanding, His Honour held that the elevated musical experience of panel members and the difficulty they experienced in making the link was not “sufficient to overcome the conclusion that the relevant degree of objective similarity is made out”.

Was Kookaburra copied by Men at Work?

As observed by Lord Reid in Ladbroke v William Hill (Football) Ltd, “reproduction” in an action for breach of copyright means copying and does not include substantially similar works arising from independent work, without copying.

Ham (the flute player) admitted that he was aware of Kookaburra, that he had heard it at school and that he was “pretty sure” Kookaburra appeared in his school’s song book. Ham also admitted that he added the flute riff in an attempt to “inject some Australian flavour into the song”. The music video to the 1981 recording shows Ham sitting in a tree playing flute to a koala in a hangman’s noose.

Colin Hay, on the other hand, was born in Scotland and immigrated to Australia. In his evidence, he claimed to be unaware of Kookaburra when the recordings were made, and that he was not aware at the time when Ham was playing a flute in a tree that it was a reference to Kookaburra. Hay told the Court he had no recollection of hearing Kookaburra during his schooling in Scotland or when growing up in Australia.

The respondents failed to call Mr Ham to give evidence. This had important repercussions against their case. His Honour held:

“It is trite to say that I can infer that his evidence would not have assisted the respondents’ case. But it is also open to me to infer that Mr Ham deliberately reproduced a part of Kookaburra, an iconic Australian melody, for the purpose and with the intention of evoking an Australian flavour in the flute riff”.

His Honour used the failure to call Ham to reinforce a finding of objective similarity, however, this also appears to answer the qualification in Ladbroke, namely that reproduction does not include substantially similar works arising from independent work, without copying.

Substantial part of the work

Both experts agreed that the first two bars of Kookaburra were the ‘signature’ to that song. However His Honour did not consider that of itself was sufficient to find that a substantial part of the work had been taken. Rather, in order to find that a substantial part had been taken, His Honour relied upon Colin Hay’s admission stated above that in live performances since about 2002, Hay would sometimes sing the flute line using the lyrics from Kookaburra. Furthermore, His Honour noted that approximately 50% of Kookaburra had been reproduced in Down Under.

Conclusion

The Court found that both the 1979 and 1981 recordings of Down Under infringed Larrikin’s copyright in Kookaburra. However, the two Qantas advertisements were not an infringement as they did not reproduce a substantial part of the work. The Court also found that Larrikin is entitled to recover damages for misrepresentation (in respect of representations made by the respondents to various royalty bodies including APRA and AMCOS) under the Trade Practices Act 1974 and the corresponding provisions of the fair trading legislation.

The question of quantum of damages is yet to be determined. Larrikin have foreshadowed a claim in the amount of 40% to 60% of past royalties. There are a number of indications in the judgment to suggest that an order to this extent may be unlikely. However, His Honour did accept that a ‘continuing representation’, had occurred, and accordingly, the limitation period will not be limited to six years.