The High Court has rejected EMI’s application to appeal against the finding that the classic Australian song, “Down Under” by Men at Work, copied bars from the tune of another well-known Australian ditty, “Kookaburra sits in the Old Gum Tree”. Following the Full Federal Court’s rejection of EMI’s previous appeal, the hearing last Friday was EMI’s final chance to overturn the finding of copyright infringement.
Justices Gummow and Bell heard the application for special leave in less than half an hour. The transcript gives some clues as to the uphill battle EMI was facing to convince the Court to hear the appeal, with EMI’s counsel being peppered with questions by Justice Gummow. A submission that the inclusion was done “by way of tribute to the iconicity of Kookaburra” did little to sway the judges, with Justice Gummow commenting that it was irrelevant whether or not there was such a “tribute”.
Similarly, the argument that the Men at Work song “involved a sufficient degree of transformation” of the bars taken from “Kookaburra” to compel a finding of no infringement was met with scepticism by the Court. The Court instead appeared to accept the submission from opposing counsel that even though there was not “a ready aural perception” of the Kookaburra bars in Down Under, there was no doubt the bars were there and the lower courts were not in error for accepting expert assistance in identifying the copied bars in the hit song.
Having been unsuccessful in its application, EMI will also have to pay the opposing party’s costs of the appeal. For our commentary on the previous stages of this case, see posts here, here, here and here.