Court Finds Down Under a Rip-off of Kookaburra
06 November 2012
Larrikin Music Publishing has won its Federal Court proceedings against EMI, with the Court ruling that Men at Work’s hit Down Under had infringed its copyright in the children’s song Kookaburra Sits in the Old Gum Tree.
“The principal respondents did not dispute the existence of a causal connection between the works,” writes Belinda Findlay, a partner at Blake Dawson. “As a result, the Court had to determine two fundamental issues: whether there is a sufficient degree of objective similarity between the flute riff in Down Under and the first two bars of Kookaburra, [and] whether the bars of Kookaburra which are reproduced in Down Under are a substantial part of the original work.”
Down Under was first released in 1979 as a “B side” and then again in 1981 as a single, with both containing the flute riff, or hook. The Court described a hook as “a short instrumental figure which (with luck) proves to be instantly memorable and recognizable every time the song is played.”
Findlay reports that the hook, as it is heard today, was added to the 1981 recording of Down Under by Greg Ham, who admitted knowing about the Kookaburra song at the time of composing the riff, and that his aim in adding the flute to Down Under was to inject some “Australian flavour” into the song. Ham described the riff as an Aussie cliché melody; the music video of Down Under shows him sitting in a gum tree playing the flute riff.
At the same time, Colin Hay, one of the composers of Down Under, acknowledged that for a period of two or three years in the early 2000s, he sometimes sang the words of Kookaburra at the point at which he reached the flute line when he performed Down Under at concerts, wrote Findlay. “Although Mr Hay denied being aware of the connection between the songs at the time the Down Under music video was made, he accepted that the flute riff (played by Mr Ham) was ‘a direct musical reference to Kookaburra’ (albeit not an obvious reference),” she wrote.
“In determining whether there is a sufficient degree of objective similarity to amount to a reproduction of part of the original work, the Court considered a number of musical elements, namely melody, key, tempo, harmony and structure,” she wrote. “The Court found that there is a sufficient degree of objective similarity between the bars of Kookaburra which are heard in Down Under to amount to a reproduction of part of the Kookaburra song.”
While the Court recognized that there are difficulties in recognizing the Kookaburra work in the Down Under riff, it noted that “a sensitized listener can detect the aural resemblance between the bars o Kookaburra and the flute riff of Down Under,” and ultimately found that this is sufficient to satisfy the test of objective similarity, wrote Findlay.
The Court went on to note that, because two of the four bars of Kookaburra are reproduced in Down Under, any quantitative test is also satisfied.
“Having now determined that Men at Work’s Down Under infringes Larrikin’s copyright in the Kookaburr work, the Court will now deal with the question of what percentage of the income of Down Under ought to be paid to Larrikin,” Findlay says. “Although this issue was not determined in these proceedings, Justice Jacobson emphasised that ‘the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the hook of that song.’”
