It’s over: High Court will not hear Kookaburra v Down Under copyright appeal
EMI Songs Australia Pty Limited & Anor v Larrikin Music Publishing Pty Ltd  HCATrans 284
The coda of the ‘Kookaburra’ v ‘Down Under’ saga has finally been played. On 7 October, 2011 the High Court of Australia refused an application for special leave to appeal earlier findings of the Federal Court that the iconic flute riffs of the 1980s Men At Work hit ‘Down Under’ had infringed the copyright in the children’s campfire song ‘Kookaburra Sits in the Old Gumtree’ penned by Marion Sinclair in 1934. The decision brings to a close one of the most high-profile copyright cases in recent years, and will mean the EMI companies (owners and licensees of the Down Under copyright) must pay Larrikin (owner of the copyright in Kookaburra) 5% of all royalties they received from Down Under.
Decisions of the trial judge and the Full Federal Court
At first instance, Justice Jacobson of the Federal Court found that Down Under reproduced a “substantial part” of Kookaburra and that as a result EMI had misrepresented to collecting societies that it was entitled to 100% of the Down Under royalties. In a separate decision, his Honour arrived at a figure of 5% as the total percentage payable to Larrikin of royalty income which was determined upon the basis of the hypothetical bargain that would have been negotiated by EMI and Larrikin, had the parties willingly entered into a licence agreement at the time the relevant misrepresentations began.
On appeal to the Full Federal Court, Justices Emmett, Jagot and Nicholas unanimously upheld Justice Jacobson’s findings on infringement, prompting EMI to seek leave to appeal to the High Court.
EMI’s reasons for appeal to the High Court
In its application for special leave to appeal, EMI relied on three grounds:
- That the trial judge had erred in narrowing the scope of his comparison between the two songs to only the two contentious bars of Kookaburra and the flute riff in Down Under, rather than the copyright work and the alleged infringing work as a whole, when assessing infringement.
- That the trial judge had erred in relying on the evidence of expert musicologists in assessing whether the flute riff of Down Under was sufficiently similar to the relevant bars in Kookaburra such that a “reproduction” had occurred. It was submitted that similarities that could only be determined with the education of expert evidence was not enough to establish reproduction.
- That the Down Under flute riff had quoted the relevant parts of Kookaburra as a way of tribute to an Australian cliché or ironic melody, and that in doing so had transformed the relevant parts to a sufficient degree so as to render it “a legitimate appropriation outside the statutory monopoly.”
These arguments did not persuade Justices Gummow and Bell, who refused the application for special leave to appeal to the High Court. Justice Gummow said:
We are not satisfied that any question of principle respecting copyright infringement in musical works would be presented upon an appeal in this case rather than questions to the application of settled principle to the particular facts.
Costs of the appeal were awarded to Larrikin.
What next for EMI? Calculation of damages.
The High Court’s refusal of EMI’s application effectively brings the question of infringement in this case to a close. EMI will be required to pay Larrikin 5% of all royalties it received for Down Under from 20 May, 2002 (as Larrikin’s entitlement to damages is limited to income earned during the six year period immediately prior to the filing of court proceedings, claims in respect of earlier payments being barred). The process of calculating these damages will begin on 15 December, 2011 with a directions hearing before Justice Jacobson.
Justice Jacobson has not made orders regarding future royalties to be paid by EMI, as Larrikin’s damages claims were for past misrepresentations made by EMI about its entitlement to Down Under’s royalties. Justice Jacobson noted in his decision of 6 July, 2011, however, that “common sense would suggest the application of the 5% figure to future payments” as well.