Having determined that Larrikin Music Publishing (Larrikin) was entitled to damages under the Trade Practices Act 1974 (Cth) for the respondents' misrepresentations, the latest round of proceedings in Kookaburra centred on the determination of the percentage of that interest, and any other entitlement that Larrikin might have, to collecting society income (Australasian Performing Right Assocation (APRA) and Australasian Mechanical Copyright Owners Society (AMCOS) in relation to the exploitation of 1979 and 1981 versions of "Down Under".
As noted by Jacobson J, the relevant misrepresentations made by the respondents were that:
1. The performance and mechanical reproduction of Down Under did not infringe the copyright in any other work; and
2. The composers and the recording companies were entitled to all the publisher’s and writer’s share of the income from Down Under.
The parties agreed that the applicable percentage interest was to be determined upon the basis of a hypothetical bargain that would have been arrived at between a willing licensor and licensee. However, there were a number of issues that separated the parties in the determination of this percentage. These included:
- The musical significance of the two bars reproduced in the flute riff of Down Under;
- The fact that the similarity between Kookaburra and the flute riff in Down Under was not noticed publicly for more than 20 years;
- A consideration of comparable arrangements negotiated in the music industry where one work is sampled in a later work;
- The time at which the bargain is taken to have been reached;
- The respective bargaining positions of the parties; and
- The practice as to whether a percentage is to be paid on all future versions of the later work whether including the sample or not.
Larrikin contended that “…a fair remuneration for the licence to use the copyright in Kookaburra for the purpose of writing and exploiting Down Under negotiated on an arm’s length basis between willing parties would have been a royalty in the order of between 25% and 50% of the total income of Down Under”.
For their part, the respondents argued that the reference to Kookaburra in the flute riff of Down Under would justify no more than 5% of royalties and pointed to the substantive and arguably more memorable elements of the “Down Under” that gave the song its anthemic quality.
In finding that Larrikin was entitled to 5% of royalties, Jacobson J noted that the “qualitative and quantitative comparison… required… in this part of the case… involves a weighing of the significance of the bars of Kookaburra to the overall musical qualities of Down Under” as distinct from the enquiry being limited to the bars of Kookaburra reproduced in the flute riff of Down Under. With this in mind, the figures put forward by Larrikin were considered by the Court to be excessive, overreaching and unrealistic.
If you have any queries in relation to copyright claims or the Trade Practices Act, please contact Scott Sloan.
Scott Sloan | Partner
T 61 2 8233 9554
F 61 2 8233 9555
Stuart Green | Associate
T 61 2 8233 9586
F 61 2 8233 9555
