Men At Work and EMI have lost once again in the copyright
dispute over "Down under" and "Kookaburra sits in
the old gum tree" after the Full Federal Court dismissed their
a finding of copyright infringement (EMI Songs Australia Pty
Limited v Larrikin Music Publishing Pty Limited  FCAFC 47
Comparing the whole works to each other?
At the heart of Men At Work's and EMI's appeal was a
complaint over the way that the trial judge, Justice Jacobson, had
analysed the two songs to find a substantial part of
"Kookaburra" had been copied. They said, in effect, that
the judge was required to compare the whole of the works to each
other – was "Down under" similar to
"Kookaburra", considered overall?
The Full Court rejected this. When a court is asked to decide if
a substantial part of a work has been taken, the issue is not
whether the part allegedly taken from "Kookaburra" is
important to "Down under", but whether the part taken is
important to "Kookaburra". In this case, it was.
The ordinary listener vs the sensitised listener
A second limb in their appeal was whether the trial judge was
able to be an ordinary listener, having heard the expert witnesses.
Again, the Full Federal Court found no error in his approach:
The trial judge could detect the similarity between the two
pieces. He identified and applied the test of the ordinary
reasonably experienced listener to objective similarity. He
accepted that he may have become a sensitised listener. He made use
of the expert evidence to support the finding of objective
Do you need to show the alleged copyright infringer
intended to take advantage of the skill and labour of the first
Men At Work and EMI argued that the trial judge was required to
find that they intended to take advantage of the skill and labour
of the author of "Kookaburra", Ms Sinclair (the Latin
term used in copyright law is animus furandi).
The question of intention can be significant in cases about
copyright protection for compilations, because the court is trying
to distinguish between the protection of information and the form
in which information is conveyed or expressed. Ultimately however
it might not be necessary, given that subconscious copying may
infringe copyright, and if a causal connection can be shown. You might also be interested in ...
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