[2010] FCA 29

In June 2009 the Federal Court of Australia considered the preliminary question of whether Larrikin (a music publisher) is the owner of the copyright in the classic Australian children's song "Kookaburra Sits in the Old Gum Tree" ("Kookaburra"), written and composed in 1934 by Marion Sinclair and the winning entry of a Victorian Girl Guides singing round competition.

On the preliminary question, Jacobson J concluded as between the parties to the proceedings (the Victorian Girl Guides was not a party) the copyright in Kookaburra had been assigned to Larrikin (Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd [2009] FCA 799).

The substantive issue at the trial heard in late October 2009 was whether the 1979 and 1981 recordings of Men at Work's iconic Aussie anthem "Down Under" infringe the copyright in Kookaburra.

In his judgment today, Jacobson J applied the three step approach to comparing competing works as expressed in other recent copyright infringement judgments of the Court, that is:

  1. identify the work in which copyright subsists;
  2. identify in the allegedly infringing work the part that has been derived or copied from the copyright work; and
  3. determine whether the part taken is a substantial part of the copyright work.

There was no dispute between the parties that Kookaburra was an original composition.

His Honour considered that there is a sufficient degree of objective similarity between the flute riff in Down Under and two of the four bars of Kookaburra, and that the Down Under recordings reproduce a substantial part of Kookaburra thus constituting infringement of the copyright in Kookaburra.

His Honour also determined that Colin Hay and Ronald Strykert, the composers of Down Under, and the EMI companies which owned and licensed the copyright in the lyrics and music of Down Under ("respondents"), had made misleading and deceptive representations to royalty income collecting agencies APRA and AMCOS firstly, that the respondents were entitled to 100% of the proceeds from the performance, communication and record sales of Down Under and secondly, that Down Under did not infringe the copyright in any other work.

Significantly, His Honour dismissed the respondents' submission that Larrikin's claim for damages was statute barred given the length of time that has elapsed since the relevant 'representations' were made to APRA.

His Honour emphasised that his conclusions "do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the 'hook' of that song".

In the next round, the Court will need to grapple with the calculation of the percentage of the proceeds from Down Under to which Larrikin is entitled.