Recently the Federal Court handed down an interim decision for case involving the classic Australian song, “Kookaburra sits in the Old Gum Tree”. The plaintiff, Larrikin Music Publishing Pty Ltd (“Larrikin”) has brought proceedings against the composers of the song “Down Under” and the owner and licensee of “Down Under” (“EMI”). Larrikin claims that the song “Down Under” was written using a substantial part of “Kookaburra”, and this infringes on their copyright.
The composers and EMI argued that Larrikin did not own copyright in the song. They argued that Ms Sinclair, the composer of “Kookaburra” had entered the song into a competition by the Girls Guides Association of Victoria. A condition of the competition was that all matter entered was to become the property of the Guide Association.
The question before the Court on this occasion was if the entry into the competition constituted assignment of copyright to the Girls Guides Association of Victoria under the 1912 Copyright Act.
The Federal Court held that:
- on the basis of the evidence presented to the Court, there was no written assignment of copyright.
- there was no intention to assign the copyright.
- the entry form to the competition that identified “Kookaburra” as an entry did not constitute an assignment of copyright.
This case goes to remind us that assignment of copyright needs to be clear and in writing. The Copyright Act also states that assignment does not have effect unless it is in writing signed by or on behalf of the assignor.