Does Downunder really infringe Kookaburra?

POSTED BY Rick Shera
07 July 2010

posted in l@w.geek.nz | Copyright | Caselaw | International

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EMI and Men at Work, having earlier lost to Larrikin Music on Larrikin's claim that Downunder infringed copyright in the Aussie folk song Kookaburra sits in old gum tree, have now been ordered to pay royalties (although nowhere near the 60% Larrikin wanted).

The case is going on appeal in August (August is copyright appeal month accross the ditch in Australia, with the iiNet and Yellow pages appeals also being heard then). The appeal won't stop EMI and Men at Work having to pay up now unless they apply for a stay of the monetary judgement pending the outcome of the main appeal (HT @lods1211).

The UK's Telegraph has helpfully put the songs side by side so you can decide.  For me though, the following quote from para 217 of the damages judgement is particularly telling:

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 Kookaburra’s contribution to Down Under, looked at a whole.

But doesn't that really suggest that there wasn't a substantial enough similarity for there to be infringement at all?

What do you think?

POSTED BY Rick Shera
07 July 2010

posted in l@w.geek.nzCopyrightCaselawInternational

VIEWED 4641 TIMES

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