There has been a lot of discussion in recent months around the ‘Down Under’ vs ‘Kookaburra sits in the old gum tree’ case.
See: http://www.abc.net.au/news/stories/2010/06/07/2920250.htm?section=justin for the latest.
As the parties are back in court this week, I thought it timely to conduct a closer inspection of what is happening in this case.
It really comes down to an example of the significant portion rule.
An infringement is seen to have taken place when a ‘substantial portion’ of the copyright-protected work is being used without the permission of the copyright owner or the payment of the correct royalty. So what exactly is a ‘substantial portion’?
It can be a question of quality and or quantity. The question turns to the particular essence or quality of the part that is taken, not how many words or how much of the melody of the original work are used. A snippet of a song (like ‘Kookaburra’) can still be an infringement
There is no hard and fast rule — it is different in every case. Generally, however, if the part of the copyright-protected music that you are using is recognisable as having come from somewhere else, you will need to obtain permission or pay a royalty — or provide a defence as to why you did not.
MYTHS ABOUT THE SUBSTANTIAL PORTION RULE
- I can use any music I want, as long as I change a note or two.
- I can use up to 13 seconds of a song without gaining permission.
- As long as I’m not making a profit from using a song, I can use any part of it I want.
- I didn’t know the part of the song I was using was ‘recognisable’, so I didn’t need to get permission.
- I’ll just use it. No-one will ever know.
In the current case, the authors of ‘Down Under’ are saying that the reference to Kookaburra is an insignificant portion. It is important to note that their defence did not include a suggestion that there were no similarities between ‘Down Under’ and Kookaburra. The last phrase of the flute riff in ‘Down Under’ is exactly the same as the opening melody line in Kookaburra. The court agrees with this assessment and it is now up to the courts to decide what that substantial portion is worth in dollar terms.