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Judge Carton Affirmed by Australia's High Court in Flap Over Men at Work's 'Down Under'

In February 2010, Judge Carton ruled in a case pending in an Australian court (yes, he has discretion to exercise jurisdiction over Australian matters) in which record company EMI sought to overturn a court ruling that the Aussie band Men at Work copied a flute riff from the children's song "Kookaburra Sits in the Old Gum Tree" in their 1980s song, "Down Under."

EMI argued that similarities to two bars of the Kookaburra song might be noticed by "the highly sensitized or educated musical ear" but were unlikely to be noticed by the ordinary listener. Judge Carton was not persuaded, finding that even to his decidedly NOT "highly sensitized or educated musical ear," the two key bars in the songs sounded just alike. To spare the parties in this case in which the outcome was obvious the time and expense of further litigation, Judge Carton dismissed the appeal and affirmed the verdict in favor of "The Kookaburra Who Sits in the Old Gum Tree."

EMI did not accept the wisdom of Judge Carton's arguably non-binding ruling, and pressed forward with its appeal. A year and a half later, however, Australia's High Court has now agreed with Judge Carton, and formally denied EMI's appeal. Accordingly, The Associated Press reports, EMI is now on the hook to pay publishing company Larrikin Music, the copyright holder for "Kookaburra," five per cent of royalties earned from the song since 2002 and from its future earnings.

Litigants, Judge Carton is here to help you. Heed his words! Ignore his rulings at your peril.

Posted by Bruce Carton on October 26, 2011 at 04:20 PM | Permalink | Comments (0)

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