Jacobson J has upheld Larrikin's claim to be the owner of copyright in
Kookaburra sits in the Old Gum Tree, which means, at least, that Larrikin has standing to sue Men at Work et al. for infringing copyright in that music.
Larrikin alleges that Men at Work's
Down Under (you know, unfurl the
Boxing Kangaroo,
declare a national holiday and have a beer with Bondy) infringes the copyright in "Kookaburra".
The trial was supposed to start in June, but wasn't ready so Jacobson J heard, as a preliminary question, Men at Work's defence that Larrikin didn't own the copyright.
How did this come about?
Margaret Sinclair wrote "Kookaburra" back in 1934 and submitted it into a competition being run by the
Girl Guides for "A Singing Round with Music". The published terms of the competition were:
RULES for ENTRY.
(a) The entrance fee for each entry in any of the Competitions to be 6d.
(b) A prize of 10/6 to be given to the winner of each section.
(c) The Competitions to be open to all enrolled members of the Guide Association in Australia.
(d) All matter entered to become the property of the Guide Association.
(e) The decision of the Judges to be final.
(f) All entries to be accompanied by the entrance fee of 6d. also name and address of entrants.
(g) All entries to be in by July 31st.
(my emphasis)
Miss Sinclair's entry was the winner!
Larrikin, however, didn't claim title from the Girl Guides. Rather:
- in 1987, shortly before her death, Miss Smith donated some manuscripts, including an adaptation of Kookaburra for violin, to the State Library in South Australia and there was an accompanying form which said all copyright "owned by me" in the deposited documents shall vest in the Library on my death; and
- by her will Miss Sinclair left to the Public Trustee in South Australia all her estate and assets.
Larrikin obtained assignments from first the Public Trustee (for the princely sum of $6,100 through public auction) and, later, the Library.
Jacobson J held that Men at Work hadn't proved that Miss Sinclair assigned the copyright in Kookaburra to the Girl Guides back in 1934, so (although Men at Work argued the terms of the assignments were defective for reasons which his Honour is not alone in having trouble following) one or other of the assignments from the Public Trustee or the Library did the job.
The first problem for Men at Work was that there was no assignment in writing to the Girl Guides with Miss Sinclair's signature on it. There was a manuscript with her signature and initials, but that was equivocal; it might have just been to identify the manuscript as hers and not some other entrant in the competition.
Similarly, Jacobson J considered it was pure speculation to assume that there must have been a signed entry form. Miss Sinclair was closely involved in the Girl Guides movement and it could not simply be assumed that she had submitted a form - she was well-known to the Guides - or even that she was aware of the terms of the competition.
Further, Jacobson J considered that clause (d) set out above was insufficient to do the work of an assignment. It might have just referred to property in the manuscript. Afterall, when you buy a book from your local (or online) bookseller, you get ownership of the physical copy, not the copyright.
Finally, there was evidence of conduct after the competition which indicated to Jacobson J that Miss Sinclair had never intended to assign her copyright. For example, in 1934 and 1935 she had donated to the Guides royalty payments she received from sales of printed copies of Kookaburra. The Guides, in turn, had thanked her for her generous gifts. They also sought permission from her in later years to reprint the music.
Where does that leave the case?
Well, first, it is interesting that Men at Work had to prove the assignment to the Guides and not Larrikin having to disprove it. I suppose that is because Larrikin was relying on the assignments from the Public Trustee and the Library so Men at Work had the burden of showing those documents didn't work.
Secondly, presumably, it is yet to be decided whether or not some part of Down Under does actually reproduce the whole or some substantial part of Kookaburra. That would have been part of the postponed trial.
Then, there will be the question - assuming infringement be established - of how damages or profits are payable and whether or not the "innocence" defences in
115(3) and
116(2) are available.
The terms of the assignments set out in the judgments don't appear to include assignments of the right to sue for past infringements. However, the assignments themselves should be sufficient to cover the 6 years before the proceedings commenced.
Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited
[2009] FCA 799
Lid dip:
Peter Nicholas
A little bit of trivia: Men at Work, with Down Under, are one of 9 pop acts that have achieved simultaneous No. 1s in both the UK and USA, according to
Wikipedia.
Wonder whether anyone from Men at Work will be appearing on
Spicks and Specks now?
