+ Copyright Assignment

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'Kookaburra sits in the Old Gum Tree' was written and composed in about 1934 by Ms Marion Sinclair. Ms Sinclair entered 'Kookaburra' in a competition conducted by the Girl Guides Association of Victoria. 'Kookaburra' was the winning entry in that competition which had, as one of the rules for entry, a condition that: 'All matter entered to become the property of the Guide Association'.

Ms Sinclair died in 1988 and the Public Trustee was the trustee of her estate. It claimed ownership of the copyright in 'Kookaburra'. But the Library Board also claimed to be the owner of the copyright by reason of a donation of records made by Ms Sinclair in 1987.

The question of whether the entry of 'Kookaburra' in the competition constituted an assignment of the copyright to the Victorian Girl Guides was relevant to this dispute. It had to be determined under the Copyright Act 1912 (Cth), which was in force in 1934. The effect of the 1912 Act was that any assignment was required to be in writing and signed by the owner.

The first question was whether the court should infer that Ms Sinclair was aware of the rules of entry so that it may be said that they contained the terms of a written contract between Ms Sinclair and the Victorian Girl Guides. The Court held that the evidence did not establish that Ms Sinclair entered into a contract in writing on the terms contained in the circular.

The second question was whether the assignment was signed by Ms Sinclair. In this regard, the evidence included two signed or initialled manuscripts of 'Kookaburra' submitted by Ms Sinclair as her entry in the competition.

However it was held the signature and the initials constituted identification of the work only – identifying the work as one that had been composed and written by Ms Sinclair. The court was not prepared to infer that the signature and initials were placed on the manuscripts to serve any other purpose. The court also said that even if the manuscripts formed part of the contract between Ms Sinclair and the Victorian Girl Guides, the evidence did not support the inference that Ms Sinclair signed them in the capacity of an assignor but rather that she signed them merely to identify the manuscripts as her own works.

A question also arose as to whether Ms Sinclair ever intended to assign the copyright to the Victorian Girl Guides. Emphasis was placed on correspondence covering the period from the 1950s which was said to point to actions by Ms Sinclair that were inconsistent with the claim that she had assigned the copyright to the Victorian Girl Guides. However, statements made by her in her 1984 autobiography were said to disclose an intention to assign the copyright in 1934.

It was held that most of the communications referred to (including the statements in her book) were between Ms Sinclair and third parties. The court held that it is the communications between the parties themselves which are admissible rather than statements made by one party to a stranger to the alleged contract.

Whilst this case dealt with the copyright in a musical score and its lyrics, the same principles apply to software which is included in the definition of "literary work" under the Copyright Act 1968.

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