04 Apr 2011

Men At Work's copyright appeal over Kookaburra doesn't work so well in Full Federal Court

by Mary Still, John Fairbairn

Men At Work and EMI have lost once again in the copyright dispute over "Down under" and "Kookaburra sits in the old gum tree" after the Full Federal Court dismissed their appeal against a finding of copyright infringement (EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47 ).

Comparing the whole works to each other?

At the heart of Men At Work's and EMI's appeal was a complaint over the way that the trial judge, Justice Jacobson, had analysed the two songs to find a substantial part of "Kookaburra" had been copied. They said, in effect, that the judge was required to compare the whole of the works to each other – was "Down under" similar to "Kookaburra", considered overall?

The Full Court rejected this. When a court is asked to decide if a substantial part of a work has been taken, the issue is not whether the part allegedly taken from "Kookaburra" is important to "Down under", but whether the part taken is important to "Kookaburra". In this case, it was.

The ordinary listener vs the sensitised listener

A second limb in their appeal was whether the trial judge was able to be an ordinary listener, having heard the expert witnesses. Again, the Full Federal Court found no error in his approach:

The trial judge could detect the similarity between the two pieces. He identified and applied the test of the ordinary reasonably experienced listener to objective similarity. He accepted that he may have become a sensitised listener. He made use of the expert evidence to support the finding of objective similarity.

Do you need to show the alleged copyright infringer intended to take advantage of the skill and labour of the first author?

Men At Work and EMI argued that the trial judge was required to find that they intended to take advantage of the skill and labour of the author of "Kookaburra", Ms Sinclair (the Latin term used in copyright law is animus furandi).

The question of intention can be significant in cases about copyright protection for compilations, because the court is trying to distinguish between the protection of information and the form in which information is conveyed or expressed. Ultimately however it might not be necessary, given that subconscious copying may infringe copyright, and if a causal connection can be shown.

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