Larrikin Music Publishing Pty Ltd v. EMI Songs Australia Pty

“Kookaburra Sits in the Old Gum Tree” (“Kookaburra”), written by Marion Sinclair in 1934, was an iconic Australian nursery rhyme consisting of four bars of music sung in a round. The copyright for “Kookaburra” was owned by Larrikin Music Publishing Pty Ltd (Larrikin) (plaintiff). In 1979, Greg Ham (defendant) added a flute line to the previously composed song “Down Under” by Colin Hay and Ronald Strykert (defendants), which was written to capture the essence of Australia. Ham’s flute line included two bars copied from “Kookaburra” and appeared three times in “Down Under.” “Down Under” became an international success. In 2007, after a popular music-quiz show in Australia pointed out that the flute line in “Down Under” was partially taken from “Kookaburra,” Larrikin filed a copyright-infringement action against EMI Songs Australia Pty (defendant), the music publisher for “Down Under,” as well as Hay, Strykert, and Ham (collectively, EMI) arguing that “Down Under” reproduced a substantial part of “Kookaburra.” Larrikin submitted an expert report from musicologist Andrew Ford stating that the first two bars of “Kookaburra” were its signature and that “Down Under” copied those first two bars exactly. EMI countered, arguing that there was no infringement because even if “Down Under” had copied two bars from “Kookaburra,” the amount copied did not constitute a substantial portion of “Kookaburra.” In a supporting affidavit, Ham admitted that he was aware of “Kookaburra” and that he had added the flute line to boost the Australian flavor of “Down Under”; however, Ham argued that he had not consciously or intentionally copied “Kookaburra.”