After Larrikin Music proved last year that it owned the copyright in the song “Kookaburra Sits in the Old Gum Tree” (see decision here), its claim that two Men At Work recordings of the song “Down Under” infringe Larrikin’s copyright in Kookaburra because both of those recordings reproduce a substantial part of Kookaburra (in a flute riff) has succeeded: Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited  FCA 29.
After hearing evidence about the history of the Men At Work recordings and expert evidence on the musical notes in both songs, Judge Jacobson concluded that Down Under reproduced a substantial part of Kookaburra.
However the judge also commented that “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.”
Damages are to be assessed.
The case also considered whether two Qantas advertisements which contain an orchestral version of a part of Down Under breached Kookaburra’s copyright: the judge concluded they did not.
UPDATE 27 February: EMI to appeal
UPDATE 6 July: Past damages assessed at 5% of royalties for the last 6 years. Reasons here.
UPDATE 1 April 2011: EMI’s appeal dismissed by Federal Court Full Court