- The Full Federal Court has affirmed the first instance decision in EMI Songs v Larrikin Music, holding that Men at Work’s iconic song ‘Down Under’ infringed copyright in the Australian folk song ‘Kookaburra Sits in the Old Gum Tree’.
- One of the judges expressed disquiet about the conclusion in this case and intimated that there should be an applicable fair use exception.
- This decision is significant for composers, music publishers, collecting societies and more broadly for any artists or authors of copyright works which reference or pay tribute to existing works.
EMI brought an appeal against the first instance decision of Justice Jacobson, in which his Honour held that the 1979 and 1981 recordings of the song ‘Down Under’ infringed Larrikin Music’s copyright in the Australian folk song ‘Kookaburra’.
The principal question on appeal was whether a substantial part of ‘Kookaburra’ had been reproduced in ‘Down Under’ so as to constitute copyright infringement. In three separate judgments, the court dismissed the appeal on this principal question. Only one of the three judges, Justice Emmett, found error in the trial judge’s reasons.
The court also affirmed the decision at first instance that certain Qantas advertisements which used part of the song ‘Down Under’ did not infringe copyright in ‘Kookaburra’. Therefore EMI had not authorised copyright infringement by granting licences for the use of ‘Down Under’ in those advertisements. The outstanding questions on EMI’s liability for authorisation of copyright infringement in respect of other uses were remitted to the trial judge for determination.
The principal ground of appeal
On appeal, EMI argued that the primary judge had failed to give due weight to the differences between ‘Kookaburra’ and ‘Down Under’, including that the air of the songs was different. The court acknowledged that there were differences between the two songs in terms of key, structure, tempo, rhythm and genre. Yet the court did not consider that these differences meaningfully detracted from the objective similarity between the relevant parts of the songs.
EMI also submitted that ‘Down Under’ and ‘Kookaburra’ could not be objectively similar if the similarity had gone unnoticed by the general public for more than 20 years, notwithstanding the fact that both songs are iconic Australian compositions. The court disagreed, holding that the aural resemblance between the respective parts of the songs need not be resounding or obvious in order to give rise to copyright infringement.
The fact that similarities between songs need not be obvious for a latter work to infringe copyright in an earlier work potentially raises difficulties for composers of music and copyright owners. This is particularly so in light of the court’s statements that copyright infringement can occur subconsciously.
A further argument made on behalf of EMI was that the primary judge failed to give adequate weight to the evidence that the originality of ‘Kookaburra’ lay in its composition as a round and, in turn, to take this into account on the question of whether a substantial part of the song was reproduced in ‘Down Under’. The court found that, given that the composer of ‘Kookaburra’ had applied skill and originality in writing the song as a round, each of the individual phrases making up the round manifested the application of skill and originality. Moreover, the court found that even if the originality of ‘Kookaburra’ was limited to its composition as a round, a substantial part of ‘Kookaburra’ could be reproduced without reproduction of the round structure. Justice Emmett noted that:
though brief, [the two relevant phrases in ‘Kookaburra’ are] an important and significant part whose composition may be said to have involved skill and originality. I consider that those phrases constituted an essential air or melody of the copyright work.
The court considered that the similarities between the works gives the impression that the individual effort of the composer of ‘Kookaburra’ had been adopted, even though the intention of doing so was not to save effort but rather to reference ‘Kookaburra’ as a tribute to its iconicity.
Justice Emmett’s ‘disquiet’
In his reasons, Justice Emmett expressed some reservations about the conclusion in this case. He commented that the duration of copyright protection ought not necessarily be the same for every copyright work.
His Honour also expressed concern about whether the reference to ‘Kookaburra’ should be treated as a fair use (although no appropriate fair use exception currently exists under Australian law). He stated:
one may wonder whether the framers of the Statute of Anne and its descendants would have regarded the taking of the melody of Kookaburra in the Impugned Recordings as infringement, rather than as a fair use that did not in any way detract from the benefit given to [the composer of ‘Kookaburra’] for her intellectual effort in producing Kookaburra.
Justice Emmett’s disquiet about this decision is likely to be shared by those in the music industry who consider that drawing on other songs is a natural part of the creative process of composing original music.