The popular television show 'Spicks and Specks' has sparked a copyright dispute relating to two well known Australian songs.

Larrikin Music Publishing Pty Ltd (Larrikin) became aware of a potential claim as a result of a music trivia question on the show. A question was asked: 'which children's song appeared in the Down Under song?'. The answer was given as: 'Kookaburra Sits in the Old Gum Tree'.

This triggered Larrikin to bring a copyright infringement claim against the writers and publishers of 'Down Under'.

Larrikin owns copyright

The Federal Court decided yesterday that Larrikin is the owner of the copyright in the musical and literary works relating to 'Kookaburra'.

The Court's decision is central to Larrikin being able to maintain its copyright proceedings in relation to the celebrated Men At Work song, 'Down Under', against EMI Songs Australia Pty Ltd, EMI Publishing Australia Pty Ltd (collectively, EMI) and the composers of 'Down Under', Colin Hay and Ron Strykert (collectively, the composers).

Background to the proceedings

Larrikin commenced proceedings for copyright infringement in the Federal Court in February 2008. Larrikin claimed it was the owner of the copyright of the musical and literary works in 'Kookaburra' and that the famous flute riff in the 1980s hit 'Down Under' reproduces a melody line from 'Kookaburra'. It further claimed that it should be entitled to compensation for copyright infringement and unpaid royalties.

Ownership issue

Just before the Court proceedings were to begin to decide the issue of copyright infringement, EMI and the composers produced evidence that, they asserted, demonstrated that Larrikin was not in fact the copyright owner of 'Kookaburra' but, rather, that the Girl Guides Victoria was.

Consequently, the Court decided to hear the issue of ownership first, before it decided the issue of copyright infringement.

  • Larrikin's claims

Larrikin claimed that Ms Marion Sinclair, the author of the Kookaburra Song, assigned her copyright in 'Kookaburra' to the Libraries Board of South Australia in 1987, one year before her death. The Libraries Board of South Australia then subsequently entered into an agreement to assign the copyright in 'Kookaburra' to Larrikin.

  • EMI's position

EMI and the composers argued that the Girl Guides Victoria owned the copyright in 'Kookaburra' as a result of a competition run by the Guides in 1934, in which the winning entry was submitted by Ms Sinclair. EMI argued that, because the rules for entry of the competition stated that 'all matter entered to become the property of the Guide Association', the copyright had been assigned and, therefore, was owned by the Girl Guides Victoria.

Consequently, EMI claimed that the Libraries Board had no relevant copyright to sell to Larrikin.

  • Court's decision  

The Court held that the copyright in 'Kookaburra' had not been assigned to the Girl Guides Victoria for, among other things, the following reasons:

  • No entry form or other evidence was produced to show that Ms Sinclair had knowledge of the terms of the competition when she submitted her entry.
  • The Girl Guides Victoria did not intend that Ms Sinclair would assign the copyright in 'Kookaburra' to it. The Court came to this conclusion as a result of various correspondence both from and to Ms Sinclair regarding her intention to donate the proceeds of sale of all three rounds to the Girl Guides Victoria. The three rounds were included in a publication by the Girl Guides Victoria and included a manuscript of the words and music of 'Kookaburra'.
  • The rules for entry of the competition that stated that 'all matter entered to become the property of the Guide Association' was not sufficient to effect an assignment of the copyright in the work. Justice Jacobson stated, 'I do not consider that the words in question in the present case are sufficient to disclose, on an objective consideration, an intention to effect an assignment of copyright.' That is, the Court distinguished between the physical manuscript, which it held fell within the meaning of 'matter', and the copyright subsisting in the song.  

What's next?

The Court will hear the copyright infringement issue at a later date