EMI and Men at Work lose appeal on Kookaburra claim

May 2011

Music Publishing

The appeals court in Australia has upheld a Federal Court ruling that said Larrikin Music, publishers of Australian children’s classic ‘Kookaburra Sits In The Old Gumtree’, are due a share of all songwriting royalties on the Men At Work classic ‘Down Under’, because the short but distinctive flute sequence in the 1981 pop hit borrowed from the folk tune. The Federal Court ruled that Larrikin should get 5% of all ‘Down Under’ royalties dated paid back to 2002. EMI must also cover Larrikin’s legal costs in relation to the appeal.

My good friend Jeremy Philips writing on the 1709 Copyright blog (www.the1709blog.blogspot.com) picked up on the following comment from  Emmett J, in which the judge expressed some disquiet concerning the finding of infringement:
“If, as I have concluded, the relevant versions of Down Under involve an infringement of copyright, many years after the death of Ms Sinclair, and enforceable at the behest of an assignee, then some of the underlying concepts of modern copyright may require rethinking. While there are good policy reasons for encouraging the intellectual and artistic effort that produces literary, artistic and musical works, by rewarding the author or composer with some form of monopoly in relation to his or her work (see Ice TV at [24]), it may be that the extent of that monopoly, both in terms of time and extent of restriction, ought not necessarily be the same for every work…”.

This reminded me of appeals judge Alex Kozinski in the much quoted dissenting judgment in White v Samsung (1993) when he said “Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture”.

EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47.

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