Men at Work’s “Down Under” was released in 1981. It took 26 years before the public became aware – courtesy of TV show Spicks and Specks – that the introductory flute riff from such a massive hit song appeared to be sourced from “Kookaburra Sits in the Old Gum Tree”.
On 10 July 2009, we blogged on the brewing dispute about this issue. Later that month, we commented that Larrikin Music had been successful in establishing that it owned copyright in “Kookaburra sits in the Old Gum Tree”, which gave it title to sue.
Today, following more recent proceedings, Justice Jacobson held that “Down Under” did infringe Kookaburra, and will now proceed to determine damages.
This case answers some very interesting questions at the outer perimeters of copyright law. Are four bars enough to create a musical work, namely, “Kookaburra”? (yes). Is it sufficient to infringe if no more than two bars are copied and incorporated into another iconic song? (yes). What if few people (including, it seems, the complainant) recognise the derivation until it is pointed out in a specialist musical show? (it doesn’t matter). It’s this last point which is likely to prove most controversial.
To establish copyright infringement, one must prove copying of the original work (objective similarity) and that a substantial part has been taken (requiring a qualitative analysis as well as a quantitative one). The judgment strongly focuses on questions of copying, and engages in a quantitative analysis of the amount copied. However, the qualitative assessment does not focus on what one would expect to be the primary issue: what happens when no one recognises the original work?
In terms of copying, Jacobson J’s conclusions appear to have been influenced by Men at Work singer/songwriter Colin Hay’s admission that at some point after release of the song he found out that the introductory riff was a reference to “Kookaburra”. But why does this matter? True, it provides strong evidence that the riff was derived from “Kookaburra” (ie copying), but this does not – of itself – determine whether a substantial part has been taken.
In terms of a quantitative analysis, “Kookaburra” only consisted of four bars. Jacobson J found that “Down Under” took, at most, two bars, and that the riff included other notes not in the “Kookaburra” composition. However, because two bars comprised 50% of the whole work, this was sufficient to infringe.
Some might argue that if a few people recognised “Kookaburra” in “Down Under” only after it was pointed out in a specialist music game show then there should be no infringement because this could not qualitatively amount to a substantial part. Yet while Jacobson J expressly acknowledged that there were difficulties in the recognition of the work, he did not squarely deal with the implications of there being limited, if any, aural recognition. Given that music is an aural medium, it is surprising that this did not receive more attention.
Interestingly, the Jacobson J also found that certain Qantas ads which took only one bar of “Kookaburra” did not infringe. He did not explain why ‘one bar is acceptable whereas two bars are not’, other than to say that he found it difficult to detect the bar played in the Qantas ads.
His Honour left the question of damages for another day. However, the judgement contains a subtle warning that it might be over-reaching for the applicant to seek 40-60% of royalties. Jacobson J stated: “I would emphasise 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”. Our prediction? Stay tuned for an appeal.