News: EMI loses Kookaburra appeal

The Federal Court of Australia today made a final decision in a case that dealt with whether a riff the popular song “I come from the land down under” by the band Men at Work in 1980, was taken from a popular Australian tune “Kookaburra sits in the old gum tree”. We had wrote about this case last year and made some brief commentary on some parts of it. You can view our article here.

Not many people are aware that the popular  Australian Folk Tune was written by Melbourne teacher Marion Sinclair in 1934. Larrikin Music owns the rights to the song and were seeking a percentage of the profits to the song as compensation.  An short extract of the song appears in a short flute solo in the song “I come from the land down under”, and this went on unnoticed for a long period of time.

When the matter was first heard, the primary judge considered that what was taken from Kookaburra was not trivial in either a qualitative or a quantitative sense. Another question that was dealt with was quantity as opposed to quality – although the judge accepted that quantity was a secondary question in relation to quality, he considered that almost 50% of Kookaburra had been reproduced.

EMI did not agree with the findings of the primary judge and appealed the matter on a number of grounds.

At the appeal, Justice Emmett considered that:

“A similarity between part of Kookaburra and the flute phrase is clearly perceptible. True it is that that similarity went largely unnoticed for in excess of 20 years, notwithstanding that each work is said to be an iconic Australian work. Nevertheless, the question is one of objective similarity. The aural resemblance need not be resounding or obvious. The relevant test is not the effect upon a casual listener of the whole of the versions of Down Under in the Impugned Recordings. Sensitised though the primary judge may have been to the similarity, it is not erroneous to direct oneself to the relevant parts of the works, to listen to the works a number of times, and to accept the assistance of the views of experts, in determining the question of objective similarity. In those respects, I do not consider that the primary judge erred.”

This case shows us that there is no hard and fast rule about copying or altering other people’s work – it only matters that a substantial part, or a readily identifiable similarity, can be identified with respect to the original and the offending works. We often hear from laymen that “It’s okay to reproduce the work as long as we change 20% of the work”. This is not true, and this case is a good example showing that such rule does not exist.