The kookaburra has laughed first, but will it laugh last?

Posted: 05/08/2009 Larrakin Music Publishing Pty Ltd (“Larrakin”) has won the first round of a Federal Court battle against Sony BMG, EMI and the two writers of one of Australia’s unofficial national anthems – the 1980s smash hit ‘Down Under’. Larrakin claims that Colin Hay and Ron Strykert (who wrote ‘Down Under’) infringed Larrakin’s copyright by copying a substantial part of the song ‘Kookaburra Sits in the Old Gumtree’, which was written by Marion Sinclair in 1934 for a Girl Guides competition. The question that the Federal Court answered yesterday was whether Larrakin owned the copyright in the Kookaburra song. The defendants argued that Larrakin never owned the copyright in the Kookaburra song because Ms Sinclair assigned those rights to the Girl Guides Association of Victoria when the song was submitted as an entry in the competition. The defendants’ position was not accepted by the Federal Court, with Justice Peter Jacobson finding that Ms Sinclair did not assign copyright in the Kookaburra song by entering it in the competition. In summary, Justice Jacobson said that a condition of entry that stipulated that all ‘matter’ entered into the competition would become the property of the Girl Guides Association of Victoria was not sufficient to constitute an assignment of copyright. Justice Jacobson said that the word ‘matter’ related to the physical property on which the entry was submitted, not the copyright in the work. The Federal Court will now need to determine whether a substantial part of the Kookaburra song was reproduced in the song ‘Down Under’. Stay tuned.