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Court in the Act
21 July, 2010  
Who's laughing now?

Kookaburras and copyright … Media neglects critical points in reporting damages decision in Kookaburra Sits in the Old Gum Tree v Down Under ... Larrikin’s claim “excessive, overreaching and unrealistic” ... Kookaburras are greedy creatures … Leanne O’Donnell reports


imageRecently, a Melbourne Catholic priest and regular Triple J guest on Sunday with John Safran, Fr Bob Maguire, (@FatherBob) tweeted:

“Took the 5k route for Run Melbourne (Sunday). Kookaburra started to laugh from Gumtree. I warned K about copyright. Pressed on.”

The court proceedings about the round Kookaburra Sits in the Old Gum Tree composed and written by Marion Sinclair in 1934 and Men at Work’s iconic song Down Under has clearly made its way into popular culture with the finding of copyright infringement being reported internationally.

On February 4, the Federal Court in Sydney held that two versions of Down Under infringed the copyright in Kookaburra Sits in the Old Gum Tree because the flute riff in the Men at Work piece reproduced a substantial part of Sinclair’s work.

This finding did not mean the court found that the flute riff is a substantial part of Down Under.

Justice Jacobson highlighted in his findings that Greg Ham’s aim in adding the flute riff was to inject some “Australian flavour” into the 1981 recording of Down Under and that Ham, the flautist for Men at Work, deliberately reproduced the relevant part bars of Kookaburra for that purpose.

The Kookaburra case again made headlines on July 6 with ABC News claiming Kookaburra has the last laugh in response to the court’s decision on the damages to be paid to Larrikin Music, which now owns the copyright in Kookaburra.

The “last laugh” headline, may reflect the pressure to break news, however, that piece and indeed most of the mainstream reporting on the July decision neglected critical parts of the Kookaburra story.

Damages

Justice Jaconson ordered the song’s composers, Colin Hay and Ron Strykert, and its publisher EMI to pay Larrikin Music five percent of Down Under’s future profits, as well as five percent of the royalties dating back to 2002.

imageThe mainstream news reports failed to note that these damages are not for copyright infringement.

Rather, they are damages under the Trade Practices Act for misrepresentation made by EMI, Colin Hay (pic) and Ron Strykert to collecting societies, the Australasian Performing Right Association and the Australasian Mechanical Copyright Owners Society.

The court said that the performance and reproduction of Down Under does not infringe the copyright in any other work that the composers and the recording companies are entitled to all of the publisher’s and writer’s share of the income from Down Under.

In coming to the five per cent figure, the court heard evidence from both parties about licence fees negotiated by musicians to sample parts of other songs.

Neil Jones, the copyright manager of EMI Music Publishing Australia, explained the process of sampling in the music industry and how EMI negotiated licences to sample parts of a song.

imageJones’ affidavit put forward samples which pointed to a lower licence fee than those cited by Larrikin Music’s witness.

Justice Jacobson noted that in particular Jones referred to David Bowie’s All the Young Dudes sampled by Green Day in its song 21 Guns and Queen’s (pic) We Will Rock You sampled by Eminem in Puke.

The effect of Jones’ evidence was that Men at Work’s reference to Kookaburra in the flute riff of Down Under would justify “a couple of percent” of the royalties.

“Later, he explained this as five percent or less.”

At least in terms of the amount of damages awarded the judge’s decision quite closely reflects the evidence of EMI and Men at Work’s own witness.

He concluded:

“I consider the figures put forward by Larrikin to be excessive, overreaching and unrealistic.”

In the course of his reasoning, Justice Jacobson said:

“It may be accepted that the first two bars of Kookaburra are its central leitmotif, but it took more than 20 years to recognise them in Down Under.”

In view of that it is unlikely the court got it wrong, as a number of commentators have suggested.

Much more likely is that copyright law is in need of reform.

Not the last laugh

This month’s damages decision is by no means the Kookaburra’s last laugh.

EMI Records and the composers of Down Under lodged an appeal of the court’s finding of copyright infringement.

The Full Federal Court will hear the appeal on August 9 to 11 in Sydney.

The iconic status of the Kookaburra

Having been born and bred in regional Victoria, with a childhood filled with Sunday drives and bush walks, it is incumbent on me to dispel the myth of the Kookaburra being some merry “laughing” bird.

The true reason behind the Kookaburra’s raucous cackle is that they are greedy opportunistic creatures.

imageThe memory of a kookaburra swooping down on my brother and plucking the sausage from his three year old fingers at a picnic in the Grampians is family lore.

This was no one-off incident. Earlier this year I read reports of a sausage-addicted kookaburra that was simply too obese to fly.

Despite the kookaburra’s true nature, the Kookaburra in the Old Gum Tree round has persisted in popular culture both in Australia and abroad, featuring in the early seasons of American children’s show Barney & Friends and in a 2006 Doctor Who episode “Fear Her”.

See also HurricaneGabrielle on YouTube

Leanne O’Donnell @lods1211