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Kookaburra riff ripped off, finds court. -

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ELEANOR HALL: Now to another copyright case and in this one the kookaburra has had the last laugh.

Larrikin Music accused the band Men at Work of stealing their riff from the children's song
Kookaburra Sits in the Old Gum Tree.

The record companies EMI and Sony BMG disputed the claim but today the Federal Court ruled in
Larrikin's favour, as Sarah Dingle reports.

(Sound of children singing Kookaburra Sits in the Old Gum Tree)

SARAH DINGLE: It's a song heard in Australian primary schools across the country.

Written in 1934 by a Melbourne teacher Marion Sinclair for a Girl Guides jamboree, Kookaburra Sits
in the Old Gum Tree is still a kids' favourite.

But it's the use of the same melody in this song:

(excerpt from Down Under by Men at Work)

...aimed at adults which saw both songs in court.

The kookaburra song left victorious, Larrikin Music's lawyer Adam Simpson welcomed his win saying
it was yet to be decided what percentage of earnings from the song they'd be seeking.

ADAM SIMPSON: It depends. I mean anything from what we have claimed which is between 40 and 60 and
what they suggest which is considerably less.

SARAH DINGLE: John Anderson from EMI was not saying much outside court except that the company
would have to review what he called a complex judgement.

When asked if he expected significant damages to be awarded he gave this brief answer:

JOHN ANDERSON: Not necessarily.

SARAH DINGLE: And he says it's not yet clear whether Men at Work would lose their right to perform
the song.

(Excerpt from Down Under by Men at Work)

The judge also ruled that a Qantas advertisement which used a small similar section of the riff was
not in breach of copyright laws. EMI said it was pleased with this decision but Larrikin Music's
lawyer Adam Simpson wasn't ruling out further legal action.

ADAM SIMPSON: In the Qantas ad there was only, there was a smaller part of the song and so the
judge felt that that wasn't enough to qualify as an infringement of copyright. But we'll be giving
that some more thought.

STEPHEN DIGBY: I have to say what it does show is just how difficult these sorts of cases can be.

SARAH DINGLE: Stephen Digby is a lawyer specialising in music copyright. He says he's surprised by
the court's decision.

STEPHEN DIGBY: I think it could have gone either way but my initial reaction and also looking at
this case my initial reaction following it has always been that this is going to be a very hard
case for Larrikin to win.

SARAH DINGLE: And why did you think that?

STEPHEN DIGBY: Because of that very point in fact that it is, it is certainly an identifiable and
discernable piece within the song but as a gut feel, my gut feel was that it was probably not a
substantial, sufficiently substantial in the song as a whole.

Clearly the judge disagreed with me.

Musicologists' reports often come in in these types of cases where the many experts give some sort
of sonic or sound comparisons and, but often at the end of the day there is the judge's gut feel
based on the law of course. But often it is a bit based on whether he thinks it's substantially
similar.

SARAH DINGLE: Stephen Digby says it could clear the way for more cases to come forward.

STEPHEN DIGBY: I think it could and that's something that concerns me a little bit. And I look
forward to seeing the judgement in full and I'm hopeful that in that he might give us guidance on
what he considers to be a considerable, a substantial part or not.

SARAH DINGLE: The parties will meet again on February the 25th to discuss the findings and talk
about costs.

ELEANOR HALL: Sarah Dingle reporting.