The Federal Court has today determined the damages payable as a result of the earlier finding (reported here) that the flute riff in the Men at Work song Down Under infringed copyright in the musical round known as Kookaburra.
Interestingly, the decision of Jacobson J in Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited (No 2) [2010] FCA 698 was not a determination of damages for copyright infringement but rather damages under the Trade Practices Act 1974 (Cth) for misrepresentations made to collecting societies, the Australasian Performing Right Association and the Australasian Mechanical Copyright Owners Society. Accordingly, the question for determination was the percentage interest, and any other entitlement that Larrikin may have, to APRA and AMCOS income in relation to the exploitation of Down Under.
In calculating an appropriate royalty by considering a hypothetical bargain between the copyright owner and potential licensee, Jacobson J considered the musical significance of Kookaburra in Down Under, the thematic significance, the significance of certain performances of Men at Work front man Colin Hay in which he would sing the words of Kookaburra during Down Under and the visual association with Kookaburra as found in the Down Under music video.
Each of these considerations was found to point toward an appropriate royalty being at the lowest end of the scale. In relation to the musical significance of the part of Kookaburra reproduced in Down Under, the Court placed significant emphasis on the fact that the resemblance between the two was not identified for over twenty years and was only made apparent to Larrikin by a third party.
The Court concluded that:
Although the quotation from Kookaburra in the 1981 recording is, in my view, sufficient to constitute an infringement of copyright, other factors are to be taken into account in assessing the percentage interest payable in a hypothetical licensing bargain.
The most obvious factor is the difficulty in detecting the similarity between the flute riff and the bars from Kookaburra. A further strong indicator of a low percentage is to be found in a qualitative and quantitative consideration of Kookaburraâs contribution to Down Under, looked at a whole.
Accordingly, Jacobson J considered âthe figures put forward by Larrikin to be excessive, overreaching and unrealisticâ and found that a figure of 5% of the income paid by APRA and AMCOS was an appropriate calculation of damages.