Federal Court in Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited - Essay Example

Federal court ruling: Federal Court in Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited (Name) (Institution) (Grade/course) (Instructor’s Name) February 9 2010 The copyright law in the music industry in Australia and the world over has very pertinent issues that do not escape scrutiny and analysis from various quarters due to the fragility of the premise of the law and its application. The EMA government guide on music copyright in Australia says “Copyright is a type of property that is founded on a person's creative skill and labour. It is designed to prevent the unauthorised use by others of a work, that is, the original form in which an idea or information has been expressed by the creator.” This definition is closely similar to what the academic world refers to as plagiarism. However, in the case of plagiarism, use of published work by another person and appreciating the same is allowed. Given that copyright is not tangible creates a very indefinite premise of defining copyright and application of the law in protecting this type of property. Interpretation and understanding of this law is important to music composers and stakeholders in the industry so as to protect their property and also avoid violating the rights of others (Wilson, 2010). Since the property in this case if intangible, prove of ownership is a very complex issue which requires numerous perspectives for correct legal application. A recent case that has exposed the debate on the necessity and application of the Copyright law pertains to the Federal Court ruling in the case of Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited on January 4 earlier this year. Larrikin claimed that the composers of the song, Men at work which now two members, Hay and Strykert, remain and the eventual publishers, EMI group in the song ‘Down Under’ stole part of the song from another song ‘Kookaburra sits in the Old Gum Tree’ by Marion Sinclair. The song ‘Down Under’ has a flute riff popularized by one of the famous Australian bands, ‘Men at Work’ which according to the complainants in this case infringed on the copyright of the original song ‘Kookaburra Sits in the Old Gum Tree.’ Judge Jacobsen in making his ruling stated that there was a valid case and that the defendants were guilty of infringing on the copyright. The defendant has since then appealed against the decision. This decision by judge Jacobsen is viewed as a blow to the music industry in Australia in many ways. This paper provides an analytical view of the case in context of the law and past cases and the implication it has on the industry. In this particular case the judge held that: i. The evidence presented to the Court did not demonstrate that written assignment of copyright had occurred when Ms Sinclair entered the competition; ii. By signing and initialling the pages of the competition entry, Ms Sinclair was merely trying to identify the work and was not assigning the copyright to the Victorian Girl Guides; iii. No intention to assign could be demonstrated by the actions of either Ms Sinclair or the Victorian Girl Guides; iv. The competition rule that “all matter entered to become the property” of the Victorian Girl Guides did not reveal an intention to effect assignment of copyright; and v. The chain of title was clearly documented and Kookaburra has properly been assigned to Larrikin. As such, the judge ruled that the song ‘Down Under’ had used a significant part of the song Kookaburra Sits in the Old Gum Tree’ without authority from the owner of the property, Larrikin. The question of where a copyright exists determines how the law is applied. The Australian Council of Copyright says that an originator of a property whether physical or intellectual, like in the case of music owns the idea but can under an agreement, allow the use of his original works by another party. According to the ruling in this case, the flute riff used in the ‘Down Under’ song was similar to that in the ‘Kookaburra sits in the Old Gum Tree’ song. In the appeal, EMI plans to argue that the ‘ordinary listener’ cannot notice any similarities of the flute riff in the two songs. However, EMI also appreciates that there “might be amusing or of interest to the highly sensitised or educated musical ear” (ABC). The children’s song ‘Kookaburra Sits in the Old Gum Tree’ had been entered in a Girl Guides Association of Victoria competition by Sinclair in 1934 and the copyright had not been properly assigned to association. However, it is worthy noting that as a requirement for entering the competition, the entrants had to agree that the winning song would henceforth be copyrighted to the Girl Guide Association. Since the song Kookabura won, then the copyright is owned by the association. With the death of Ms Sinclair in 1988, the publishing rights were presumably passed on to Larrikin Music which did not exist in the first place. However, the judge overlooked this and still held that the copyright was held by Larrikin. With such a ruling, Larrikin is posed to clam compensation in millions of dollars from EMI. The case in itself is malicious in nature given that the two songs have both been in existence for over thirty years and no one has ever noted any similarities between the two songs. The fact that Larrikin Music assumes copyrights where there are not in itself is a threat to the music industry in Australia. The Copyright, as stated in the Copyrights act of 1968 seeks to protect intellectual property and encourage creativity in the arts and intellectual world. However, the filing of this case does not recognise the role played by other artists in encouraging and inspiring new talent and creativity among upcoming artists. Although the song ‘Down under’ is certainly inspired by the nursery school rhyme, it is in no way a entire rip of the rhyme by ‘Men at work.’ The riff which is accused Larrikin says has been stolen by ‘Men at work’ is somehow of a style in jazz music. This implies that a note or a tune can never be replayed again in fear that it is protected by the copyright law. While the copyright law is genuine, the Australian legal system is taking it too far. Razer is a bit sarcastic and says that kids may soon have to steer clear of the song ‘Happy birthday’ as it maybe protected by the copyright law. The ruling in this case denies the essence of art as a sum of its individual parts of which are a collection of many from different parts. The song ‘Down under’ does not replay the kookaburra in its entirety but only the referred flute riff. On the other hand, the copyrights act recognizes infringement of the law when substantial parts of a published and copyrighted work are used without the authority of the copyright holder. In the case hearing, two musicologists proved that there was similarity between the kookaburra in down under in consideration of melody, key, tempo, harmony and structure. However, did this amount to substantial reproduction of some other works for the down under song and the composers? In testifying in the case, one of the Men at work band member, Hay, admitted to have knowingly used the kookaburra melody in a number of performances. Given that the composers were in the know should they have sought permission to reproduce the work? As a matter of law, they should have but in their knowledge did not envision the similarity being substantial in the original recording. However, the composers used the actual words of the kookaburra during a performance in 2002 as per Hay’s confirmation. If the song and bars are then copyrighted who is the rightful owner of the copyright? As aforementioned, the law recognises and seeks to protect the rightful owner of a piece of work whether tangible or not but not the perceived beneficiaries. According to the initial arrangement during the composition of the song in readiness for the Girls Guide Association, the winning song’s copyright would be ceded to the association. It is interesting to note that while Ms Sinclair was still alive, being the composer of the kookaburra never noticed any similarities between the two songs. It is thus seemingly unwarranted for Larrikin to assume ownership of the copyright of the song just because the Girls Guide Association of Victoria has not done so (Strategic Legal Services 2010). The copyright has not gone unchallenged in many quarters. One of the main points raised is that that human beings have existed on the premise of sharing knowledge and culture of which the copyright law seeks to vehemently deny and discourage. In including the words of the kookaburra in the 2002 performances and the original riff flute was merely celebration of the Australian culture that has been celebrated in various ways such as the kookaburra song which has remained poplar among children and nostalgic to adult Australian. The song down under on the other hand took this Australian culture by making the song down under a global hit. The song has been accredited with boosting tourism in the country since it won a Grammy award in its year of release 1982. Another point raised in opposing the copyright law argues that the law only seeks to help composers create a monopoly of their work and help them enrich themselves and not necessarily encourage creativity. For instance Larrikin seeks to get compensation by receiving as much as 60% of the song’s earnings, according to the lawyer for Larrikin if the decision of the federal court is upheld by the appeal court. The decision by the federal court is wrong in many ways. While the judge may have been guided by the law rather than common sense, he erred in the decision. The interpretation of this particular case points out that the copyright law of Australia needs to be revised. The case will discourage creativity in that artists will be wary not to experiment and modify or evens source ideas and inspiration from other works on the fear on infringing on the copyright law. References Arlington, K. 2010. Men at Work's Down Under ripped off Kookaburra: court. Sydney Herald. http://www.smh.com.au/small-business/men-at-works-down-under-ripped-off-kookaburra-court-20100204-nfiq.html EMI appeals against Down Under ruling. Retrieved online on 8th March 2010 from, http://www.abc.net.au/news/stories/2010/02/25/2830442.htm Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited. Retrieved online on 8th March 2010 from, http://www.copyright.org.au/news/news_items/cases-news/2009-cases/u29857/ Razer, H. (2010). Band are victims of obstinate rule of law. Retrieved online on 8th March 2010 from, http://www.theage.com.au/opinion/society-and-culture/band-are-victims-of-obstinate-rule-of-law-20100205-niie.html?comments=17 Strategic Legal Services. Retrieved online on 8th March 2010 from, http://www.strategiclegal.net.au/drupal/sls/sites/default/files/Strategic%20Legal%20Services%20-%20Larrikin%20v%20Emi%20Songs.pdf Wilson, L. (2003). Making It in the Music Business: The Business and Legal Guide for Songwriters and Performers. 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