In early August, I mentioned a case Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited pending in the Federal Court of Australia in Sydney. To briefly review, Larrikin, an Australian music publisher, alleged that the 1980s hit “Down Under” infringed it’s copyright in the round “Kookaburra Sits in the Old Gum Tree.” At the time, the Court found that Larrikin was the rightsholder of “Kookaburra,” and the original author had not assigned the song to the Victorian Girl Guides in 1932.
The Honourable Justice Jacobson found yesterday (Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29) that “Down Under” infringed “Kookaburra,” and that Larrikin was also entitled to recover damages for the infringment under the Fair Trading Act. The Court schedule proceedings on damages but noted that Larrikin’s claim to be entitled to 40-60% of the income of “Down Under” “grossly over-reache[d] a proper allocation of any such entitlement.”
Infringement
A plaintiff under the Australian Copyright Act must show that a defendant copied a “substantial part” of her work. The Court found that “Down Under” was infringing because a qualitatively important part of the song was appropriated and that, “although the question of quantity is secondary to that of quality, it is worthwhile noting that two of the four bars or phrases of “Kookaburra” have been reproduced in Down Under (or 50% of the song).” The Court noted that “Kookburra” was a simple work, but had sufficient originality to be granted copyright protection, and that the appropriation merited a finding of infringement.
Recent scholarship from the 
