Men at work, copyright case sued for millions.

BumbleB

Here's something I discovered surfing today .


Go on - sing a few bars of the Australian national anthem. No, not Waltzing Matilda, that other one.
No, not Advance Australia Fair. That's the official national anthem, chosen by the Australian people in 1977.
Without doubt however, Australia's real national anthem, the one that the rest of the world knows, is Down Under by the band Men At Work.


Down Under was released as long ago as 1983, but it has only recently emerged that it is a rip-off of another song, Kookaburra Sits In The Old Gum Tree, written by Marion Sinclair in 1934.


Thanks to an earlier decision in court, the copyright in Kookaburra is now owned by Larrikin Music. Sinclair died in 1988.
It does seem a bit odd that Down Under was released forty-nine years after Kookaburra was written and it was twenty-six years before Larrikin Music noticed that there is something of a similarity between the two songs!
You want to hear it, so here goes. Firstly Down Under (listen for the flute phrase around the 53 second mark)...

https://www.youtube.com/watch?v=DNT7uZf7lew

And now Kookaburra...

https://www.youtube.com/watch?v=nI0xYQ6jdKY

I'll leave it to you to judge a) whether there is indeed a similarity, and b) whether Down Under is a complete rip off, or whether it merely references a tiny piece of pre-existing Aussie culture.
But since the court has decided that the copyright in Kookaburra has been infringed, then legally it has been infringed.
And that means the infringer has to pay.
The amount that will have to be paid has yet to be determined, but Larrikin Music is, apparently, expecting 40-60% of the earnings of Down Under.


Now that is a hell of a lot of money, potentially running into millions of Aussie dollars.
To be fair, the writers of Down Under, who kicked off the process of generating those millions of dollars, have given the world a lot of pleasure. They have generated business for many, many people, and they are entitled to their share of the rewards.
But surely by now most of their money will have been spent? How are the writers going to be able to pay back the 40-60% Larrikin Music expects?


But there's a further problem that affects any songwriter...
Now that it has been upheld in court that such an infinitesimally tiny fragment of a melody constitutes copyright infringement, you can be sure that anyone in the future who makes any money from a song will get their arse sued off.
'Arse' is UK English for 'Ass', by the way.
And what about the ongoing development of automated software that scans media of all kinds for infringements? That little musical phrase you put in the middle eight of your song that features on your MySpace page will be found to exist in someone else's earlier work. You'll get sued, the writer of the pre-existing work is probably dead, their publishers rake in the profit and the lawyers celebrate with another bottle of vintage champagne.
If you support the idea that creativity should be rewarded, then probably you will feel that Marion Sinclair does deserve a share of the proceeds of Down Under.
Well she won't get any because she is dead. But since copyright extends beyond death, then while she was alive she had an asset that she could sell, which Larrikin Music now owns.


But surely there needs to be a sense of proportion. 40-60% is not proportionate. Down Under would have been a successful song with a different flute melody.
I would put a just reward at around 5% or thereabouts. And if I were a judge I would cancel it anyway because of the length of time it took for anyone to notice.


Transcript of the case is actually interesting...



http://www.austlii.edu.au/au/cases/cth/FCA/2010/29.html

jtsuited

26 years to finally get paid????

PaulBrewer

Sore Dose ....

old gregg

Australian National Anthem? I don't think so.

To huge numbers of Aussies (myself included) there is only one National Anthem and it's not changed since 1971:

http://en.wikipedia.org/wiki/Eagle_Rock_(song)

... bought the record when it came out and I was only 11. You're still likely to hear it on the radio, at a rugby (league/union) game, gig or tv at some some point on a regular basis.

Pretty much any Aussie guitarist has picked out that opening riff at some point ... before moving on to ACDC's Whole Lotta Rosie

still brings tears to my eyes

i57dwun4yb1pt8

WTF ?


Im hearing NOTHING similar in them ???

woodsdenis

DaDumTish wrote: »

WTF ?


Im hearing NOTHING similar in them ???

The similarity is in the flute riff at the start of the MAW song apparently. I certainly dont hear it

madtheory

It's a crazy decision, but it's not millions (yet).

Colin Hay (Men at Work singer) has stated that they did use two bars from it, but that it is part of the arrangement, not the composition. He also points out that Larrikin only bought the publishing rights so that they could sue for it. I don't have the weblink of his statement to hand, but it's worth checking out. Very well written, honest, fair and logical.

I've heard other performances of the tune and the similarity is clear. They were just quoting a popular tune, which makes sense considering the lyrics of Down Under.

The costs hearing is at the end of the month. Larrikin are looking for 40 to 50%. I really hope they get 1 to 3% and are forced to use it to set up a children's charity named for the original composer.

BTW, if you get a chance to see Colin Hay perform live, go see him. He's amazing. Half standup, half music. And he still has that voice.

woodsdenis

madtheory wrote: »

It's a crazy decision, but it's not millions (yet).

Colin Hay (Men at Work singer) has stated that they did use two bars from it, but that it is part of the arrangement, not the composition. He also points out that Larrikin only bought the publishing rights so that they could sue for it. I don't have the weblink of his statement to hand, but it's worth checking out. Very well written, honest, fair and logical.

I've heard other performances of the tune and the similarity is clear. They were just quoting a popular tune, which makes sense considering the lyrics of Down Under.

The costs hearing is at the end of the month. Larrikin are looking for 40 to 50%. I really hope they get 1 to 3% and are forced to use it to set up a children's charity named for the original composer.

BTW, if you get a chance to see Colin Hay perform live, go see him. He's amazing. Half standup, half music. And he still has that voice.

MT , I just did a bit more reading on this, the 2nd bar of the flute riff in the intro is similar to the first bar of Kookakburra, later on in the MAW version there is an extended flute piece where the 2nd and 4th bars are similar to the 1st and 2nd bars of Kookakburra. Either way it seems a daft decision and brought on by a publishing company who got the rights with an intention to sue.

the_barfly1

Heres a good comparison video of the alleged plagiarism from youtube

Yeah this bit is the same.... but COME ON, apparently its also an old Welsh tune too!

woodsdenis

the_barfly1 wrote: »

Heres a good comparison video of the alleged plagiarism from youtube

Yeah this bit is the same.... but COME ON, apparently its also an old Welsh tune too!

I wonder how many other tunes have that sequence in it, hardly the most original musical phrase is it.