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Larrikin Music Publishing has scored a major victory against EMI and legendary Australian band Men at Work. In a landmark ruling, the Australian Federal Court has ruled that the recording of ‘Down Under’ infringes Larrikin’s copyright on ‘Kookaburra Sits In the Old Gum Tree’ because it reproduced a substantial part of ‘Kookaburra’.
Justice Peter Jacobson ruled that Larrikin owns the copyright to the song ‘Kookaburra’ and is now entitled to recover what could amount to millions in damages from band members and their record company, EMI.
“I have come to the view that the 1979 recording and the 1981 recording of ‘Down Under’ infringe Larrikin’s copyright in ‘Kookaburra’ because both of those recordings reproduce a substantial part of ‘Kookaburra’,” says Jacobson.
“I am also of the view that Larrikin is entitled to recover damages from the respondents for the infringements under the TPA or the Fair Trading Act. It seems to me that once the infringements are accepted, recovery under s 82 of the TPA and the corresponding provisions of the Fair Trading Act must follow notwithstanding the defences raised by the respondents.”
“Nevertheless, 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,” he added.
“The question of what percentage of the income of Down Under ought to be paid to Larrikin has not been determined in this part of the proceeding. Whilst the issues which I have determined in this part of the case have a bearing on the question of what is the appropriate percentage, the ultimate determination of that question will depend upon the application of legal principles and factual considerations that have not been dealt with in this part of the case.”
“The respondents submit that Larrikin’s claim to be entitled to 40-60 per cent of the income grossly over-reaches a proper allocation of any such entitlement. That is a matter to be determined in the final part of this proceeding,” concluded Jacobson.
To read the whole ruling, click here.
