TAB102 Intellectual Property
Shae Heath, Jamie-lee Carter & Eli Newman
Intellectual Property:
Men at Work vs Larrikin Publishing
“Kookaburra” vs “Down Under”
Intellectual Property (IP) comes under the term of copyright, and some forms of copyrighting needs a formal application and examination before you can claim owner- ship of your IP. Today we will be assessing the Federal Court of Australia’s, case file
NSD 104 of 2008, NSD 340 of 2008, Larrikin Music Publishing Pty Ltd v EMI Songs
Australia Pty Limited [2010] FCA 29. Date of hearing 27-30 October 2009, with the date of last submission, 16 November 2009. This will be assessed by what the case was, how it played out and subsequently how it played out in the end.
In Australia, the Copyright Act (1968) began a movement to help prevent another person exercising the exclusive rights belonging to a copyright owner without their permission. This often came with literacy and artistic works, a topic with principles and criteria which made the process of discovery and taking action a simpler task than years previous. This became a challenge in 2010 when Larrikin Music Publishing claimed an Australian classic, “Down Under” used a substantial part of melody in
“Kookaburra,” a song they owned the rights too.
In 1932, Marion Sinclair, a music teacher at Toorak College (Melbourne, Aus- tralia) and Girl’s Guide employee, composed the classic Australian tune: “Kookaburra” with the intention to raise money for the purchase of a camping ground in Victoria for the Girl’s Guide company. The song was later published in the Girl Guide Song Book in
1974, and the rights to the song were purchased by Larrikin Music Publishing around
1 TAB102 Intellectual Property the same time. In 1988, Sinclair passed away, leading to her composition to be copy- right covered for the next 70 years under the Australian Copyright law.
Released in 1980, and written by Colin Hay and Ron Strykert of the band Men at
Work, “Down Under” skyrocketed to a national and international success, hitting the US charts at number 1 for 4 consecutive weeks in January 1983, after hitting number one in Canada, New Zealand, the UK and (of course) Australia. It became a national icon through this international popularity, finding itself a theme of Australia II, a yacht that won the America’s Cup in 1983, and was played at the closing ceremony of the 2000
Summer Olympics in Sydney.
Both songs came into mutuality when an ABC-TV quiz show, titled Spicks and
Specks, posed a question in 2007 which played a clip of the land down under flute melody. To the confusion of some, the answer of what “children’s song” it sounded like was in fact “Kookaburra”.
This sparked conversations and phone calls the next day at Larrikin Music Pub- lishing Pty Ltd, the current legal owners of the iconic Australian tune, to which they felt that the Men At Work’s “Down Under” had infringed copyright by recreating a large part of the melodic tune of Kookaburra. They then decided to take legal action against the song’s writers Hay and Strykert, and consequently Sony BMG Music Entertainment and
EMI Songs Australia as they owned the publishing rights to the Men at Work band. Be- fore the trial, Sony BMG and EMI claimed that Sinclair’s composition was actually in ownership by the Girl Guides Association, therefore Larrikin were in no legal position to claim copyright infringement, which became a major speaking point going into the trial; although this was declined by Justice Peter Jacobson in a preliminary hearing on July
30th, 2009.
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The parties involved in the case of Larkin Music publishing Ptl Ltd vs EMI Songs
Australia Pty Ltd, resided in court on the 4th of February 2010. The Copyright infringe- ments by Men at Work were as followed;
Visual comparison of musical elements
Emphasis on quality rather than quantity of what is taken
Copied features of a substantial part of the work.
The iconic Australian band was accused of taking two bars from the short camp-
fire song ‘Kookaburra’ and turning it into the most memorable flute riff of its time. This riff, however, was only introduced to the song itself until after the song was composed.
All through the lawsuit, lawyers for Men at Work's recording companies maintained the statement that band hadn't copied anything, and vowed to fight the ruling.
Before the lawsuit, and before Larrikin owned the rights to ‘Kookaburra,' But be- fore that, it was written by Sinclair, she stated that she had to get prompted to go to
APRA (Australian Performing Right Association) to register the song, in 1975, at this point the song was already 40 years old. Sinclair never expressed any interest in having any property of the song, Sinclair believed that the song came to her from a higher power, saying, “it (‘Kookaburra’) came from above, I don’t own it.”
Needless to say, the case proceeded and copyright infringement were played out. The difference and similarities in songs were assessed by Dr. Ford, the musicolo- gist brought in by Larrikin, after assessing the two side-by-side one key difference was the use of Major and Minor keys used, “The melody is identical, but the chord that un- derpins is different, and it gives it a slightly different feeling…” [http://mcir.usc.edu/cas- es/2010-2019/Documents/larrikinemidecision.pdf]
As a result of this, Dr. Ford agreed, that by changing the underlining harmony, the impression given by the notes will give the impression that it is a different song. Ad
3 TAB102 Intellectual Property so Dr. Ford assessed the two songs under a microscope, picking out differences and similarities between melody, and in this sense “the resemblance is exact,” [http:// mcir.usc.edu/cases/2010-2019/Documents/larrikinemidecision.pdf] Key, and the melodic shape of the songs, tempo and rhythm, harmony and in context and structure.
The Federal Court of Australia reached verdict on February 4th 2010, ruling in favour of Larrikin Publishing. The court ruled that Men at Work’s “Down Under” violates the copyright laws associated with Sinclair’s 1934 children's song ‘Kookaburra,’ the rights to which have since been purchased by Larrikin Music Publishing Pty Ltd.
The court concluded that the questionable melody line of the two-bar flute riff in the famous Men at Work song, produced by EMI Songs Australia Pty Ltd, amounted to
50% of the total work.
Larrikin had also made unsuccessful claims against the EMI parties for general damages and the respondents for unjust enrichment. Judge Jacobson was not satisfied that the EMI parties were aware of the use of the ‘Kookaburra’s’ melody in ‘Down Un- der,’ and the court concluded that APRA paid the performing rights income to the re- spondent following their given directions - thus, there was no relevant mistake or error on their behalf.
Judge Jacobson did agree with Larrikin’s allegation that the Australian Perform- ing Rights Association (APRA) and the Australian Mechanical Copyright Owners Society
(AMCOS) relied on misrepresentations on royalty entitlements, which were provided by respondents who were members of both organisations.
The judge also concluded that the organisations would not have paid all of the royalty income to the respondents if they were otherwise the wiser.
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Larrikin Publishing asked for compensation of between 40-60% of all income earned by the respondents, in relation to ‘Down Under’ The publishing agency argued that the stolen melody was a fundamental contribution to the songs immense in- ternational success, and in particular the royalties gained by Men At Work after the song reached Number 1 on the 1983 Australian, British and American music charts.
As the representation of royalty income was a continuing representation, Judge
Jacobson also found that Larrikin’s claim for royalties was no longer legally enforceable despite the fact that the first representations were made over six years prior to the case. Furthermore, the court determined that a finding of copyright infringement did not necessarily mean that the flute riff was solely responsible for the song’s popularity or ability to resonate with listeners on an international scale.
The court found that the level of copying found in Men At Work’s ‘Down Under’ was sufficient to grant Larrikin Music Publishing 5% of the song’s royalties, however only from 2002 onwards. Men at work appealed this decision, but eventually lost.
Collin Hay, a member of Men At Work, has estimated Larrikin’s winning to total around $100,000, although reveals that the legal fees on both sides were roughly up- wards of $4.5 million. All royalties for ‘Down Under’ were frozen during the case.
Hay still performs the hit song to the delight of fans, and has even made amend- ed versions for Telstra and Qantas ads that leave out the controversial flute riff.
References
Aurthor Unknown (2009), Larrikin Music Vs Men at Work (online), Killyourstero.- com, https://killyourstereo.com/news/970321/larrikin-music-vs-men-at-work/, ac- cessed 23rd October 2018
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Jolene Bertoldi (2015), The Down Under book and film remind us our copyright law’s still unfair for artists (online), The Conversation, http://theconversation.com/the- down-under-book-and-film-remind-us-our-copyright-laws-still-unfair-for-artists-44960, accessed 23rd October
http://mcir.usc.edu/cases/2010-2019/Documents/larrikinemidecision.pdf
Cameron Adams (2015), Men at Work’s Colin Hay says Down Under lawsuit
‘contributed’ to death of his dad and bandmate (Online), News.com, https:// www.news.com.au/entertainment/music/men-at-works-colin-hay-says-down-under- lawsuit-contributed-to-death-of-his-dad-and-bandmate/news-story/ db47d17797386c960b7a7737974ea1ce, accessed 23rd October
Mary Still & John Fairbairn (2010), Men at Work go down (under) in Kookaburra copyright claim (online), Clayton UTZ, https://www.claytonutz.com/knowledge/2010/ february/men-at-work-go-down-under-in-kookaburra-copyright-claim, accessed 23rd
October 2018
Mary Still & John Fairbairn (2011), Men At Work's copyright appeal over Kook- aburra doesn't work so well in Full Federal Court (online), Clayton UTZ, https://www.- claytonutz.com/knowledge/2010/february/men-at-work-go-down-under-in-kookaburra- copyright-claim, accessed 23rd October 2018
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Author Unknown (2010), Mighty Kookaburra swoop Men At Work (online), Arts
Law Centre of Australia, https://www.artslaw.com.au/articles/entry/mighty-kookaburra- swoop-men-at-work/, accessed 23rd October 2018
THE LARRIKIN RECORDS AND LARRIKIN MUSIC FOUNDER SPEAKS OUT,
Media Release,http://www.warrenfahey.com.au/larrikin-records-and-larrikin-music- founder-speaks-out, accessed 23rd October 2018
(Author Unknown) (2010), Men at Work to pay 5% of royalties for Down Under riff
(Online), The Guardian Australia, https://www.theguardian.com/music/2010/jul/06/men- at-work-down-under, accessed: 23rd October 2018
David Leser (2012), The biggest hit (online), The Sydney Morning Herald, https:// www.smh.com.au/entertainment/music/the-biggest-hit-20120716-224x7.html, ac- cessed: 23rd October 2018
http://cornwalls.com.au/media/33946/ article_28%20may%202010_copyright%20infringement%20of%20a%20musical%20- work.pdf
Lisa Davies (2009), Claims Men At Work hit Down Under is a rip-off of Kookabur- ra song (online), The Advertiser, https://www.adelaidenow.com.au/news/national/ claims-men-at-work-hit-down-under-is-a-rip-off-of-kookaburra-song/news-story/
4797f453f4b5394c8faea7a1bfa6fc9d?sv=879c454bdafafd4948949ecf5edc7136, ac- cessed: 23rd October 2018
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