Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty
Ltd (Federal Court of Australia, 4 February 2010)
Justice Jacobson of the Federal Court has ruled that the 1981
hit song, Down Under by Men at Work, infringed copyright
in the well known Australian folk song, Kookaburra,
written in 1934. The offending parts of Down Under are
contained in the flute riff which reproduces (without vocals) the
first part of Kookaburra with the words "Kookaburra
sits on an old gum tree. Merry, merry king of the bush is he."
In deciding that there was copyright infringement, Justice Jacobson
found there was a resemblance or objective similarity between
Kookaburra and the flute riff in Down Under, and
that Down Under reproduced a substantial part of
In some respects it is difficult to understand Justice
Jacobson's finding that there was a resemblance between the
songs. Whilst there is little doubt that parts of the flute riff in
Down Under have the same melody as the first part of
Kookaburra, it is not easy to identify the connection
between the songs. The reason for this is that the part taken from
Kookaburra is separated into 2 parts in Down
Under, with other music interposed between those parts. Also,
the opening part of the flute riff is not based on
Kookaburra. The result is that the flute riff in Down
Under sounds different from Kookaburra.
The reference to Kookaburra in Down Under was
first recognised in public in 2007 on the ABC quiz show, Spicks and
Specks. The contestants were asked by host Adam Hills to identify
the Australian nursery rhyme which the flute riff in Down
Under was based on. One of the contestants identified that it
was Kookaburra but only after Adam Hills revealed which
part of the flute riff referenced the nursery rhyme.
The owners of Down Under argued before Justice Jacobson
that the difficulty in making the connection between Down
Under and Kookaburra, and the fact that the
connection did not receive public recognition until 2007, leads to
the conclusion that there is no objective similarity and therefore
no copyright infringement. That argument appeared to have some
merit but was not accepted by Justice Jacobson, although it may yet
be tested again if the decision is appealed by the Down
If the decision is not successfully appealed, the owners of
copyright in Kookaburra will be entitled to a percentage
of profits from Down Under. That battle appears to be far from
settled, with the owners of Kookaburra seeking 40%
– 60% of the profits from Down Under and the
Down Under parties arguing that percentage is grossly
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).