Is the kookaburra laughing about 5% of Down Under royalties?

Earlier this year the Federal Court of Australia found that Men at Work's famous song "Down Under" infringes the copyright in the 1934 children's round "Kookaburra Sits in the Old Gum Tree" (Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd [2010] FCA 29).

Justice Jacobson found that:

• the respondents misrepresented to the Australian Performing Rights Association and the Australian Mechanical Copyright Owners Society (collecting societies established to collect royalty payments payable to performers and publishers of musical works) that they were entitled to all of the royalty income for "Down Under"; and
• as the representation was a continuing representation, even though more than six years had elapsed since the representations were first made, the claim for royalties was not statute-barred.

Since then, Justice Jacobson has handed down his award of damages under the Trade Practices Act for the misrepresentations (Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd (No 2) [2010] FCA 698).

Larrikin had asked that it be paid between 40-60 percent of all income earned by the respondents for "Down Under". Instead, Justice Jacobson held that:

• Larrikin is entitled to 5 percent of the respondent's income earned since May 2002 (the first date on which a non-statute barred act of reliance on the misrepresentations could have occurred); and
• the 40-60 percent figures proposed by Larrikin were "excessive, overreaching and unrealistic" given that the musical significance of the bars of "Kookaburra" in "Down Under" was relatively small, and the evidence of comparable bargains reached between other musicians for the use of samples in their work.