Justice Jacobson of the Federal Court of Australia last week
ruled that the iconic Australian pop song "Down
Under", performed and recorded by the group Men at Work,
reproduces a substantial part of the children's song
"Kookaburra sits in the old gumtree"
("Kookaburra") and infringes the
copyright owned by Larrikin Music Publishing Pty Ltd.
In reaching the conclusion that the flute riff in the
"Down Under" composition was a substantial
reproduction of "Kookaburra" (a short musical
work consisting of four bars), Justice Jacobson considered the
musical elements of melody, key, tempo, harmony and structure. With
the assistance of expert evidence, he also compared the aural
musical elements and the visual features of the notated music.
Despite differences in key, harmony and structure, the Court
found that there was a sufficient degree of objective similarity
between the "Down Under" flute riff and the bars
of "Kookaburra" which are seen and heard in
"Down Under" to amount to reproduction of a part
of "Kookaburra". In this regard, the Court found
that the melody from "Kookaburra" was still
Secondly, the two bars of "Kookaburra" found
to be reproduced in "Down Under" were held to be
a substantial part of "Kookaburra" because of
the significance of the part taken. Whilst the experts considered
that the two bars taken were the "signature" of the song,
the Court did not necessarily consider that this would, of itself,
be sufficient to give rise to a finding that what was taken was a
substantial part of the copyright work. However, it was persuasive
to the Court that one of the lead signers of Men at Work, Mr Hay,
sang the relevant bars of "Kookaburra" when
performing "Down Under" live at a number of
concerts in pubs and bars. His Honour therefore considered a
substantial part of "Kookaburra" to have been
The question of what percentage of income from "Down
Under" should be paid to Larrikin following the finding
of copyright infringement will be determined by the Court at a
later hearing. The respondents have 21 days from the date of
judgment in which to file any appeal.
In the interim, the decision serves as a reminder that
substantial reproduction is a qualitative, and not quantitative,
assessment. In addition, an original work may nevertheless
constitute an infringement of copyright if it can be objectively
found to encapsulate a substantial part of another work.
The judgment has sparked significant debate about what is the
nature of copyright and creative expression that can be protected
and both the music industry and lawyers alike will await with
interest the result of any appeal.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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