Kookaburra paid for his song

The saga over the quintessential Australian song, “Kookaburra Sits in the Old Gum Tree” (“Kookaburra”), continued this week, with the Federal Court ordering that the publishers and songwriters of “Down Under” (the “respondents”) pay five percent of their royalties to Larrikin Music Publishing Pty Ltd (“Larrikin”).  These royalties are to be backdated to May 2002 and will apply to future earnings generated from the song.

On 4 February 2010 Justice Jacobson ruled that the flute riff in the iconic song “Down Under” by Men at Work did infringe copyright in Kookaburra.  Justice Jacobson noted that the damages in this case were damages under the Trade Practices Act 1974 (Cth) for the misrepresentations made by the respondents to the Australasian Performing Right Association (“APRA”) and the Australasian Mechanical Copyright Owners Society (“AMCOS”) concerning ownership of copyright in the song. 

Larrikin submitted that it should be entitled to between 25 to 50 percent of all royalties received by the respondents since May 2002, being the actual date from which royalties were payable (due to the six year Statute of Limitations period).  On the other hand, the respondents put the figure at only “a couple of percent”.  Justice Jacobson considered “…the figures put forward by Larrikin to be excessive, overreaching and unrealistic”.

It was agreed by the parties that the percentage to be awarded to Larrikin was the hypothetical deal that would have been struck if negotiation for a licence in Kookaburra had taken place.  However, the parties differed in their approach as to the timing of this hypothetical negotiation.  Larrikin submitted that the relevant date should have been 1982, being the year in which APRA and AMCOS paid 100 percent of the royalties for Down Under to the respondents.  However, the respondents contended that the relevant date was May 2002.  The bargaining power between the parties at these two dates would have been different.  In 1982 Kookaburra was a well known song and Men at Work were not well known, compared to the situation in 2002 when Men at Work and the song Down Under had become famous throughout Australia.  Justice Jacobson agreed with Larrikin, finding that 1982 was the correct date to determine the hypothetical percentage of royalties to be paid.

Both sides gave evidence of what they believed were comparable royalties reached in other copyright licences in the music industry.  These included deals reached in relation to well-known songs by Green Day, Robbie Williams and Queen.  In determining the figure of five percent, Justice Jacobson reviewed the comparable songs, as well as reviewing the musical significance of the relevant two bars of Kookaburra (that were determined to have infringed copyright), the thematic significance of Kookaburra, the significance Men at Work’s performance and the visual associations in the Down Under video. 

You can access the full decision by clicking here.  The respondents have appealed Justice Jacobson’s finding that Larrikin’s copyright in Kookaburra was infringed.  The appeal is set down for hearing next month before Emmett, Jagot and Nicholas JJ.  Should the appeal be successful, Justice Jacobson’s decision concerning damages will also be overturned.

We’ll be sure to keep you updated…

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