Earlier this month I commented on the copyright dispute between Men at Work and Larrikin Music about an allegedly stolen flute riff. The big question before the Court is whether ‘Down Under’, the famous Men at Work song, contains a substantial part of the classic Australian song ‘Kookaburra Sits in the Old Gum Tree’ (written in the 1930s by Marion Sinclair).
Before the court determines that question, Justice Jacobson held a separate hearing in June to determine whether Larrikin Music was the owner of copyright in the Kookaburra song. His Honour yesterday answered that question with a resounding “Yes”.
Larrikin Music claimed it purchased the Kookaburra song from Ms Sinclair’s executor after her death. Men at Work (along with Sony and EMI) argued that Ms Sinclair had transferred her copyright to the Girl Guides Association of Victoria, by entering the song in a Girl Guides Competition in 1934.
Justice Jacobson rejected Men at Work’s argument, and found there was no evidence of intention to assign copyright to the Girl Guides Association. The terms of the Girl Guides competition included “All matter entered [is] to become the property of the Guide Association.” Despite this term, the Girl Guides Association repeatedly sought Ms Sinclair’s permission to reprint the song in songbooks.
Justice Jacobson has ordered that the remaining question of infringement be heard as soon as possible. Unless this matter settles, Colin Hay may soon have to given evidence in the Federal Court about whether part of his most profitable song was borrowed from a Girl Guide campfire classic. If infringement is found, it will be interesting to see how the Court determines the proportion of royalties from the song Down Under which can be attributed to the flute riff in question.