Mighty Kookaburra swoop Men At Work
Musicians beware: in light of last month's Federal Court decision over 'Land Down Under', if musicians do not obtain the appropriate authorisation to use another musician’s work in their recordings they may be liable for ‘ripping off’ the original, even if the similarity between the music is not instantly recognisable.
'Kookaburra' v 'Land Down Under'
The decision (Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd) raised an unlikely comparison between two iconic Australian songs: 'Land Down Under' written by Men at Work in 1978 and 'Kookaburra Sits in the Old Gum Tree' written by Marion Sinclair in 1934. The comparison only came about in 2007 after an association was raised on an Australian music television show.
The two songs were written in entirely different musical contexts and are by no means identical. 'Kookaburra' was initially featured in a 1935 Girl Guides Association competition whereas 'Land Down Under' is a rock song released in 1983 and a chart-topper in multiple countries.
The case was initiated by Larrikin Music (the owners of the copyright in 'Kookaburra') against Sony BMG Music Entertainment and EMI Songs Australia (Men at Work’s record label and publishing company).
The court found that the flute riff in 'Land Down Under' which lasts only seconds was copied from the 'Kookaburra' song without authorisation from the copyright owner.
Copyright infringement in music occurs when an artist, without the license of the copyright owner, reproduces a substantial part of another artist’s work. Reproduce means:
- a similarity of melody, key, tempo, harmony and structure between the two works; and
- the similarity must be a ‘substantial part’ of the original work.
In determining whether or not a substantial part has been reproduced the court looks at the 'quality' not the 'quantity' of what was taken. This means that a musician need not copy the whole or even most of the original song. The 'Land Down Under' song only reproduced two bars of 'Kookaburra' however as this is the core of 'Kookaburra' this was considered to be a substantial part. The fact that the two bars of 'Kookaburra' only feature for a few seconds in 'Land Down Under' and don't form part of the tune or lyrics was found to be irrelevant.
Differences between the two works
The court stated that despite the following differences a substantial part of 'Kookaburra' was reproduced in 'Land Down Under'.
Notes, Key and Pitch: the notes in the 'Land Down Under' flute riff aren't identical to the notes in the 'Kookaburra' song. This does not prevent the recognition of a tune. What is relevant in identifying a song is the interrelationship of the pitches within a melody. In this instance the melody of the two works is similar, albeit not identical.
Rhythm and Tempo: although the rhythm and tempo of the two works aren't identical they are 'more or less' the same. It is possible to perform the same song in more than one way.
Harmony: although the two works consist of different harmonies this doesn't make the reproduction unrecognisable.
Structure: the flute riff in 'Land Down Under' separates the two bars from 'Kookaburra' as to alter the original structure of the work. This does not prevent a finding of reproduction.
Whenever music is performed, broadcast or reproduced the original songwriter is entitled to royalties. This copyright protection is automatic on writing down or recording the song.
To record or broadcast another musician’s material you must have permission from the copyright owner. There may be more than one copyright owner of the music, lyrics and recording, and since the owner isn't always the composer gaining permission from the copyright owner may involve some detective work. A good start is to contact the Australasian Mechanical Copyright Owners Society (AMCOS) and the Australian Performing Rights Association (APRA) with whom the music and lyrics may be registered for royalties. For sound recordings you should contact the Phonographic Performance Company of Australia (PPCA) or the Australian Record Industry Association (ARIA).
'Land Down Under' the sequel?
When the decision was handed down, Larrikin indicated that they expected to receive between 40-50% of the 'Land Down Under' royalties. EMI, however has appealed the decision. No doubt there is more to come in this saga, so musicians should watch this space.
Advice to original songwriters
Although copyright arises automatically you can notify people of your copyright ownership by putting the © symbol on your work next to your name and the date of creation.
If your works are published and you feel someone may have infringed your copyright you should discuss the matter with your publishing company. If your works are unpublished you contact Arts Law for advice and consider joining AMCOS and APRA who can collect recording and performing royalties on your behalf.
Amy Hay is a solicitor at Freehills.