Copyright, Kookaburras and Greg Ham

By Legal Eagle

I was really sad to read about the recent death of Greg Ham, the flautist from Australian band Men At Work. The cause of death has still not been determined. The worst of it is that right up until his death, Ham appears to have been very distressed about a copyright case, Larrikin Music Publishing Pty Ltd v EMI Songs Australia Ltd [2010] FCA 29, which the band unsuccessfully sought to appeal. The appeal was refused by the Full Federal Court in 2011, and the High Court refused special leave to appeal.

Put in short compass, the case involved Men At Work’s hit, ‘Down Under’, which featured a flute riff played by Ham. It will be familiar to any expatriate Australian (and although I wouldn’t consider myself a particularly patriotic person, the song never failed to bring a tear to my eye when I was living in England). Here it is:

In 2007, on the music quiz show ‘Spicks and Specks’, someone noted in passing that a part of the riff seemed to have borrowed part of the melody of a well-known Australian song, ‘Kookaburra sits in the old gumtree’, which was written and composed in 1934 by a Miss Marion Sinclair. Because Miss Sinclair only died in 1988, copyright still subsisted in the song, as it exists for the life of the author plus 70 years. The publishing rights were purchased by Larrikin Music. Larrikin is owned by a US company, Music Sales Corporation.

Larrikin Music sued EMI, Colin Hay and Ronald Strykert (the composers of the song) in 2009 for copyright infringement, seeking a proportion of Men At Work’s past and future royalties. Hay is also the lead singer of Men at Work. The trial judge said that Men at Work had infringed Larrikin’s copyright because the song ‘Down Under’ reproduced a substantial part of ‘Kookaburra’. At paragraphs [214] – [217], Jacobson J said:

What seems to me to be important in the present part of the case is the inference that flows from the failure to call Mr Ham. It is trite to say that I can infer that his evidence would not have assisted the respondents’ case. But it is also open to me to infer that Mr Ham deliberately reproduced a part of Kookaburra, an iconic Australian melody, for the purpose and with the intention of evoking an Australian flavour in the flute riff.

For present purposes it is sufficient to say that Mr Ham’s reproduction of the relevant bars of Kookaburra reinforces the finding of objective similarity. That is the real significance of the failure to call him.

In my opinion, it is appropriate to draw the inference that Mr Ham deliberately included the bars from Kookaburra in the flute line for the purpose referred to above.

However, I accept Mr Hay’s evidence that he was not aware of the appropriation of the bars of Kookaburra until about the early part of the last decade.

Men at Work were later ordered to pay Larrikin 5% of past and future royalties from 2002 onwards. EMI appealed the decision, but in 2011, the Full Federal Court rejected the appeal in EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 47. In his judgment at [100] – [101], Emmett J noted as follows:

If, as I have concluded, the relevant versions of Down Under involve an infringement of copyright, many years after the death of Ms Sinclair, and enforceable at the behest of an assignee, then some of the underlying concepts of modern copyright may require rethinking. While there are good policy reasons for encouraging the intellectual and artistic effort that produces literary, artistic and musical works, by rewarding the author or composer with some form of monopoly in relation to his or her work…, it may be that the extent of that monopoly, both in terms of time and extent of restriction, ought not necessarily be the same for every work. For example, it is arguably anomalous that the extent of the monopoly granted in respect of inventions under the Patents Act 1990 (Cth), being a limited period following disclosure, is significantly less than the monopoly granted in respect of artistic, literary or musical works, being a fixed period following the death of the author or composer, irrespective of the age of the author or composer at the time of publication.

Of course, the significance of the anomalous operation of the Copyright Act can be addressed in terms of the remedies and relief granted in respect of infringement. Nevertheless, one may wonder whether the framers of the Statute of Anne and its descendants would have regarded the taking of the melody of Kookaburra in the Impugned Recordings as infringement, rather than as a fair use that did not in any way detract from the benefit given to Ms Sinclair for her intellectual effort in producing Kookaburra.

In October 2011, leave to appeal to the High Court was refused.

The Age reported that, after the 2010 court case, Ham felt both the song ‘Down Under’ and his professional reputation had been tarnished, and that people would remember him only as someone who plagiarised. The decision also seems to have had a significant impact on Ham’s financial situation, and he had recently sold his beloved house and split from his wife.

We still don’t know why or how Ham died, and there is no suggestion that his death is linked with any of the foregoing. However, it is extremely sad is that at the time when he died, he was still distressed about the legal case and he felt that all his achievements were tarnished. What a tragic end to a talented man!

In the wake of the trial judge’s decision, SL wrote a post which cogently criticised the length of the artificial monopoly created by copyright law, saying:

1. IP law is rapidly becoming a laughing-stock. IP ‘rights’ (choses in action par excellence) are intangible property rights typically conferred in the form of temporary monopolies. As any economist can tell you, monopolies — especially monopolies backed by the coercive power of the state — are pretty nasty creatures when it comes down to it. You don’t want them hanging around for too long. That’s why — depending on jurisdiction — patents and trademarks are either strongly time-limited (between 10 and 16 years for most patents) and subject to registration and set all about with fever trees (trademarks). IP law exists to facilitate innovation, to reward the clever scientist or gifted writer. Taken too far, however, IP protection stifles innovation — making it harder, not easier, to make new things — and becomes a cash cow for a certain type of lawyer and a certain type of IP owner.

Copyright is the worst of the lot. It requires no registration and lasts for the life of the author plus 70 years. Yes, your grandchildren — if you do well with a novel or song — could be living high on the hog once you’ve popped your clogs. It used to be life plus 50 years, but of late, the IP types have become rather greedy.

2. Property law is only any good if it can protect the interest in question. As IP’s ability to protect intangible property rights has waned thanks to technological changes, IP owners have become increasingly silly about defending what they have. This has manifested itself in various nasty legal and economic ways. …Now we have a corporation suing in the name of a creator who died in 1988. That means Men at Work — if this decision stands — will be paying out until 2058.

In my view, copyright should expire with the author. This ‘life plus 70′ crap is an invitation to abuse and prevents the timely release of useful information and data into the public domain. It also encourages abuse in the opposite direction: witness the army of people out there who decide the whole thing isn’t worth their trouble and just partake in illegal downloading of all stripes.

SL goes on to point out that when the law is an ass (and it seems pretty clear that it is an ass in this case) it loses its moral authority.

I think we need to reconsider copyright and the length of protection given to works in the wake of Ham’s death, if it is possible to do so. Of course, under the terms of the AUSFTA it may not be possible (it was this agreement that led to the extension of copyright from 50 years to 70 years in Australia). But copyright holders should think about whether they are undermining the moral authority of the law they are seeking to uphold with cases such as this.


  1. Posted April 25, 2012 at 9:39 pm | Permalink

    kvd, I was altogether too brief in my outlining of the principle, which comes naturally to IP lawyers, to the point that we forget that it took us some time to learn. Apologies. This chapter (from a relevant and clearly written textbook) provides the history:

    The section on the idea/expression dichotomy begins on page 14, although the earlier material on why the Romans (who had block printing) and the Germans (who had Gutenberg) did not come up with copyright is fascinating. The Romans, it must be remembered, did have passing off. ‘Trademarks’ are very old.

  2. kvd
    Posted April 26, 2012 at 12:30 pm | Permalink

    Thank you for that link SL. A very clear and interesting read.

  3. Robert Parsons
    Posted April 28, 2012 at 5:13 am | Permalink

    Have a look at this if you want to see how petty the Ham case really is.

  4. Debbie Martin
    Posted August 9, 2015 at 12:17 pm | Permalink

    This copyright case has always seemed a bit strange to me as I understood that Margaret Sinclair had only actually written the words of the Kookaburra song and she herself had used an old Scottish folk tune to put her words to. She never actually wrote the music. I really don’t have a good grasp of music copyright . Would this mean that someone could write a song and put it to the tune of any old folksong or music where the owner is unknown or it is out of copyright and claim copyright if anyone else uses part of that folk song. How technical is it ?

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