(NSW) [2010] FCAFC 47
Complaining Work |
Defending Work |
|
Marion Sinclair “Kookaburra Sits in the Old Gum Tree” |
Colin James Hay (“Men at Work”) and Ronald Graham Strykert “Down Under” |
Comments by Charles Cronin, Robert Cason and Daniel Müllensiefen
This dispute involves a savory tangle of facts painstakingly sorted out by Australian federal judge Peter Jacobson in his Order of 30 July 2009. The many bits of factual information in the Order depict the circumstances in which this oddly popular – and annoying, in this writer’s opinion — ditty (a round, in fact) was created by Marion Sinclair, a spinster schoolteacher with excellent priorities; she left half her estate to the Animal Welfare League of Australia.
In his Order, Judge Jacobson focuses not on the question of copyright infringement, but on the preliminary matter of ownership of the copyright in the complaining work – “Kookaburra Sits on the Old Gum Tree” – and concludes that the plaintiff Larrikin, a small music publisher in Sydney, had legal title to the copyright in this song. The discussion involves some nice questions of copyright assignment and analysis of contractual relationship between the author of the song and the Girl Guides (Commonwealth equivalent of Girl Scouts) for whom the song was written.
Here is a copy of the Federal Court of Australia’s decision on the question of copyright ownership: Larrikin Ownership Decision.doc
On 4 February 2010 Judge Jacobson issued a second opinion in this case on the question of infringement. After an exhaustive review of the facts of the dispute, and a virtual exegesis on Australian copyright infringement law, Jacobson found in favor of the plaintiff Larrikin. The two recordings of “Down Under” by the Australian pop group “Men at Work” reproduced “a substantial part” of “Kookaburra” and therefore infringed upon the copyright to this work owned by Larrikin. Jacobson’s opinion underscores, however, his belief that while the musical riff at issue was a substantial part of “Kookaburra” it was not necessarily a substantial part of (or “hook” to) the defendant’s “Down Under”. This finding will likely affect any damages ultimately awarded the plaintiff.
Here is a copy of the Federal Court of Australia’s decision on the question of copyright infringement: Larrikin Infringement Decision.pdf
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Robert Cason and Daniel Müllensiefen:
An Australian Case concerning the similarity between the girl guides song Kookaburra sits In The Old Gum Tree by Miss Marion (1934), the rights now owned by Larrakin Records and the song Down Under by the band Men at Work.
The court had to address the similarity between the second two bars from the plaintiffs work against the flute riff in the defendants. The plaintiffs central claim was that the 1979 and 1981 recording of Down Under & two Qantas adverts that incorporate the flute riff from down under, infringe their copyright in reproducing a substantial part of Kookaburra.
Drawing on expert witnesses the judge held that with regards to the qualitative test a note for note comparison was not sufficient but what had shown a conclusive part of the evidence is an expert performing the words of Kookaburra to the flute riff of Down Under.
Melody
Specifically in regards to the melody the judge found;
The relevant comparison is between:
1. The melody of the flute riff when it plays the fourth bar of Example D, and the second bar of Kookaburra; and
2. The melody of the flute riff when it plays the second and fourth bars of Dr Ford’s Example E, and the first and second bars of Kookaburra.
With the assistance of Dr Ford and Mr Armiger’s evidence, as well as that of Mr Hay, I was able to detect a sufficient degree of objective similarity between the melody to meet the test stated in the authorities.
Dr Ford said in his first report that “the resemblance is exact” and that the two musical phrases in Down Under “are too long and also contain too much musical information for their appearances to be coincidental”.
In his oral evidence, Dr Ford described the melodies as identical and he demonstrated this by singing the notes and playing them on the piano.
Mr Armiger’s evidence was to the same effect. He referred in his report to “the shared phrases” and he agreed with Dr Ford that there is a “resemblance” between the second half of the answering
flute melody in Down Under and the first part of the sung melody, that is to say the first two bars, of Kookaburra.
Moreover, Mr Hay’s evidence seemed to me to answer the question beyond any real doubt. He accepted that the fourth bar of Down Under is a direct reference to Kookaburra. He also played Dr Ford’s Examples
D and E for me on the guitar and he accepted that the fourth bar of Example D and the second and fourth bars of Example E are “unmistakably” the melody of Kookaburra.
The court held that there a substantial part of kookaburra had be copied by the defendants in the song down under, with the objective similarity and casual connection being shown.
Example E:
And that stepping down of a minor third from the second to the fourth bar in example E is precisely the same stepping down as occurs between the first and second bars of Kookaburra?
Bars 1 and 2 Kookaburra – 2nd and 4th bars of down under flute riff
Example D:
Bar 2 of Kookaburra – melody of flute riff (bar 4)
Opinion By Judge Jacobson
Opinion text (PDF)