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Summary
The Federal Court has found that the 1979 and 1981 recordings of the song ‘Down Under’ infringed Larrikin Music Publishing’s copyright of the traditional Australian bush song, ‘Kookaburra Sits in the Old Gum Tree’ (‘Kookaburra’). The Federal Court found the Qantas advertisements which include a smaller amount of the ‘Kookaburra’ song was not infringement.
This morning, Justice Jacobson of the Federal Court of Australia handed down judgment in Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29. The court held in favour of the applicant, Larrikin Music Publishing. |
Overview of facts
Two bars of ‘Kookaburra’ were reproduced as part of the flute riff in the recording of the ‘Down Under’ song performed by Men at Work. The flute riff includes other notes which were not part of the ‘Kookaburra’ song.
In addition, two advertisements for Qantas include an orchestral version of a part of ‘Down Under’—this contains the second bar of the ‘Kookaburra’ song.
Copyright issues
Principal issues
The court identified the two principal issues:
- Objective similarity – is there sufficient degree of objective similarity between the flute riff in ‘Down Under’ and the two bars of ‘Kookaburra’? The court found that the melody was the same and the differences in structure do not overcome the conclusion of reproduction.
- Substantial part – are the two bars of ‘Kookaburra’ which are reproduced a substantial part of the ‘Kookaburra’ song? That question is to be determined by a quantitative and qualitative consideration of the bars which are reproduced.
The court commented that the description of part of a work as its signature is not sufficient of itself to find the part taken is a substantial part. However, the court considered the amount taken in the recordings satisfied the qualitative and quantitative test.
In addition, two advertisements for Qantas include an orchestral version of a part of ‘Down Under’—this contains the second bar of the ‘Kookaburra’ song. The court said the use of the second bar did not, without more, constitute a substantial part of the Kookaburra song.
The court also noted that the copied features must be a substantial part of the copyright work, but they do not need to be a substantial part of the infringing work, the overall appearance of which may be very different from the copyright work.
The element of a ‘causal connection between the two works’, was not disputed by the respondents.
Therefore, on reproduction, the court decided the recordings did reproduce a substantial part of the Kookaburra song, but the Qantas advertisements did not.
Claim under the TPA
Larrikin Music also claimed the respondents were liable in damages for misrepresentations made to the Australasian Performing Rights Associations (APRA) and the Australasian Mechanical Copyright Owners Society (AMCOS) and subsequent misleading and deceptive conduct in contravention of the Trade Practices Act 1974 (Cth) (TPA) or, alternatively, that the respondents have been unjustly enriched at the expense of Larrikin Music.
The issues with respect to APRA were whether the EMI parties have made representations to APRA that:
- EMI is entitled to 100 per cent of the publisher’s royalties payable by APRA in respect of ‘Down Under’, and
- ‘Down Under’ does not infringe copyright in any other work.
Similarly, the issue with respect to AMCOS was whether the EMI parties have made representations to AMCOS that:
- EMI Songs is entitled to 100 per cent of the royalties payable by AMCOS in respect of ‘Down Under’.
The court found that Larrikin Music was entitled to recover damages from EMI Songs Australia for the misrepresentations made to APRA and AMCOS and misleading and deceptive conduct in contravention of the TPA. The applicant’s claim of unjust enrichment was refused.
The question of quantifying damages and the percentage of income generated from ‘Down Under’ that is to be paid to Larrikin Music will be determined in another hearing at a later date.
An additional proceeding that EMI Songs Australia brought against Larrikin Music alleging unjustifiable threats of copyright infringement was dismissed by Justice Jacobson.
This article was written by Ash Von Schwan, Solicitor, Kathryn Everett, Partner and Kristin Stammer, Partner, Sydney.
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