OK, I am stumped
I warbled 'Kookaburra sits...' for years as a girl, and when I heard the Men At Work song, no echoes came. This is very silly.
Australian band Men at Work could be substantially out of pocket after Sydney federal court ruled that the flute riff from Down Under was ripped off from Kookaburra Sits in the Old Gum Tree. The latter was penned in 1934 by Marion Sinclair for a Girl Guides Jamboree, and "has since been sung by generations of Australian …
Stumped that is. Except I wasn't a girl...
Larrikin didn't even own the copyright at the time of the supposed infringement.
This sounds very fishy.
It may be a large part of kookaburra, but as the judge says, it's a very small part of Down Under.
40-60% is OTT
Paris is a girl. we all know that.
Why has it taken Larrikin Music this long to sue Men at Work?
Kookaburra Sits in the Old Gum Tree was written in 1934.
Down Under in the early 1980's.
It is now 2010, nearly 30 years since Down Under and 76 years since Kookaburra Sits in the Old Gum Tree.
Is Larrikin Music going to sue all the schools for allowing the children to sing this song as well?
"Is Larrikin Music going to sue all the schools for allowing the children to sing this song as well?"
This is the same industry that sues senior citizens and dead people, of course they will try anything. They'll sue you if you go on TV and sign "happy birthday".
Paris because I bet she's a vexatious litigator...
Sorry, but are Larrikin calling themselves "the underdog"?
The song (Down Under) was released in '79 or '81 depending where you are and Larrikin purchased the rights to the original folk song (from which it is alleged the melody comes from) in 1990. To me it seems less of a case of them being an underdog and more like someone seeing an opportunity to extort some money for something they had no creative involvement in.
It's like witnessing a road traffic accident, waiting for the injured party to die then pulling them out of the way and lying in their place so you can sue someone.
Can anyone find a recording of "Wele ti'n eistedd aderyn du?" the welsh folk song whose tune was aparently the basis of the kookaburra song?
I have looked and i cant find it anywhere, but if it is true that the kookaburra song was put to a tune stolen from welsh that makes the court decision ridiculous as the tune would be public domain, only the lyrics could be copyrighted.
..To You" Is merely new words set to "Good Morning To You," a public domain song.
Nonetheless, playing only the melody was deemed infringement when played with a visual of a birthday party. (searching madly for the reference)
This reeks the same fetid breath as patent trolling
How can they lay claim to the tune when it wasn't theirs to start with?
"Kookaburra" is sung to the same tune as the Welsh folk song "Wele ti'n eistedd aderyn du?" or "Dacw ti yn eistedd, y 'deryn du" (English translation "There you are sitting, black bird."). The syllables and themes are almost identical in pattern to those in "Kookaburra".
The tune to the National Anthem of the USA is taken directly from a drinking song - said song being the property of the Anacreon Club of Great Britain! (Link below)
Perhaps they should demand some royalties for every time that the "Star Spangled Banner" has been sung. Must amount to fair number of times. Even at a dollar a pop, that would be a sizeable chunk of dosh.
And we could let them off for the times that Roseanne Barr and Anastasia made a total horlicks of it.....
I'm surprised that there's not anything equivalent to a statute of limitations on copyright violation. I'd be very surprised if the 40-60% of the royalties these guys are claiming is even there to take anymore. Looks like the original author died a few years ago and her publisher got greedy.
But then, just another argument to limit copyright to a reasonable period like 10 years. . .
It seems that this song has been around for nearly 30 years, I'm amazed that someone from the clearing arm of this publisher didn't bring the case before.
Poor old MAW, they never seem to be able to get any luck with their work.
I feel the most sorry for the rest of the band who reportedly got virtually nothing from all the songs.
Aah, yes... a generation after MAW release their song and some corporation suddenly wants the proceeds. And let's face it: the guy who wrote the original will get ABSOLUTELY NOTHING out of it. Only the legal suits will get rich off this (and some corporate board members). Everyone else will lose something. Damn, I hate lawyers!
There should be a MUCH shorter statute of limitation on this kind of frivolity and copyrights for published works (music, films, books, etc.) should expire (become free and in the public domain) after, say, 20 years. Not the 100 or so (can't remember) that they are now. This is bull on an epic scale!
Men at Work are one of my all time favourite bands and 'Business As Usual' was a masterpiece IMO! (As was 'Cargo' but 'Two Hearts', not so much...)
I doubt there's much left of the early big pay-out from Down Under and I'd hate to see this decision sink Colin Hay, who has recently been trying to claw his way back to a well deserved slot in poular music.
This decision is just another example of copyright gone mad - good job Oasis wern't an Oz band as they'd have had to pay Sir Paul just about every major riff.
In this case, I hope the "underdog" doesn't "eventually survive"
"well deserved slot in poular music."
Is that polar or popular or some new word we don't know yet?
For those that don't know. There's only one song that's totally and completely original where subsequent singers / writers have always borrowed after that. That sone was the first ever created. Everything else after that has built on some small part of that in some way. This is just plain stupid. Another massive FAIL for IP.
It's such a shame that this one couldn't simply be left to lie, instead of some skint rights owner trawling for coin 20 years after the event, based on an original recording that he didn't actually have any artistic involvement in. Parasite.
Speaking from someone NOT from down under - this is SUCH a good record that has stayed with me my whole adult life and never fails to cheer me up when I hear it, and I truly hope that that any award will be anything less than minimal, if anything at all.
Now, where did I put my vegemite sandwich?
Is a musical quote plaguarism? So they did quote, so maybe they should pay up in a world where copyright is perversely long (death plus 70 anyone?) but no way is "40% - 60%" justified by using the one phrase in the flute solo.
Seems copyright "growth" outstrips the passage of time these days, so things will never go out of copyright. Just like i can expect the pension age to grow faster than my actual age from now on, so that I may never reach pension age.
Nice song BTW.
Especially so called "intellectual property" law. The more stupid the IP law decision, the more the whole idea of IP law is dragged into the kind of public disrepute that enables the wide ranging legal reforms needed to gain political momentum.
When there is no longer any rational basis to consider IP to represent moral rights, the more these claimed rights are ignored in practice the better.
This is a stupid decision and it just goes to show what is wrong with Copyright laws around the world. MaW included about 2 bars from the song as a tribute by an Australian band to a part of Australian culture. Hardly an attempt to plagiarise.
What was the actual loss to the rights holder? Nothing!
However there is one part of this case that I find absolutely hilarious. The action was brought against EMI and SonyBMG. Who are the "pirates" now?
Also Larrakin are trolls - from the report on the ABC website:
"Costs are yet to be determined but Larrikin's solicitor Adam Simpson says they could run to 60 percent of the income derived from the song.
"Obviously the more the better, but it depends," he said."
All that about "Kookaburra" has dragged to the fore some well-buried memories of "Time and Tune" on the radio in junior school, singing along in class and some tone-deaf teacher with a Xylophone. No flute part AFAIR though.
I always got stuck with the ridged wooden fish thing that you scrape with a stick. I WANTED THE BLOODY TAMBOURINE!!!111!! Some smug little git whose mother was chair of the PTA or something always got the tambourine. Scarred for life I am.
There are some things that should remain forgotten......
I've just counted. It's 8 notes from the tune. The flute plays "Kookaburra sits in the old" and then goes off in a different direction.
Never mind 40-60% of "Down under" - it's not even 40-60% of the original song. Which itself only has 4 lines and lasts about 20 seconds, so it's not exactly a substantial piece of work.
There is a definite resemblance between the last 2 bars of the flute riff and the first 2 bars of the Kookaburra song.
It is rather obviously accidental though.
Given all the music out there it is almost inconceivable that there wouldn't be accidental collisions between the odd bar here or there. They would have to prove intent and since this song isn't about birds (at least not that type anyway) I think they would have a hard time convincing me....
Don't the first 4-5 notes MIMIC the Kookaburra? My very early days of listening to Radio Australia shortwave on an 0-V-0 * (shows my age!) seem to be flowing back. Wasn't this bird's song used as the 'signature'? /Update/ - yes it was, from http://www.intervalsignals.net/files/aus-z-radio_australia_melbourne.m3u
* 0-V-0. 'Bout as simple a receiver as you could make. 0 valves in the RF amplifier, V-valve in the detector (super-regen, natch) and 0 valves in the audio bit. Less than a dozen components and cost 77/- , but as a kid, I'd listen to the world with it. (http://www.wftw.nl/hac/hac.html)
Next thing you know, the Reg will be telling us that Vanilla Ice lifted the riff for "Ice, Ice Baby" from Queen and David Bowi......wait a second.....
(Seriously, a couple years back during a mini-Vanilla Ice renaissance here in the States, I saw Vanilla Ice on one of those morning network talk shows. He actually had the temerity to suggest that the beat on Ice, Ice Baby was different than the one from "Under Pressure". He said that Under Pressure went something like "dun-dun-dun-dutta-dun-dun" while "Ice Ice Baby" went "dun-dun-dun-dutta-dun-DUN". I wasn't convinced.)
Paris, because you never need a reason to use her icon
I'm reliably informed by a composer that according to the current copyright laws, you're allowed a 7 note "similarity" and anything after that is plagiarism.
Guess how many VI put in his pathetic attempt? 7 - and then "he" added the additional "dun" which meant according to the law, it wasn't the same song.
Any sequence of notes less than a certain length will have been "plagiarised" by someone.
Just changing the key doesn't create a new tune, so we've got a limited number of transitions between notes and a limited number of lengths of notes, further constrained by rules of harmony and metre. Neither does rapid repetition really add much. I could capture the essence of the Kookaburra theme in the sequence "3, 4, 3-1-3". I'd be quite stunned if you couldn't find that in hundreds of classical tunes centuries out of copyright.
In fact, the very idea of copyright on modern music is simply innumerate arrogance of the highest order. It's ALL been done before, and in most cases very much better by very much more talented souls than the average band.
Hmmm, depending on the country (copyright laws are national) there is a requirement to actively pursue copyright infringement to show that you are maintaining your rights. Depending on when this suit was filed, there could also be a case for limiting the damages to the royalties since that time (I'm sure MaW made most money from this in the first couple of years).
There is still hope that at the damages hearing common sense will prevail and the percentage of the song that is actually used will be taken into account.
What am I saying - common sense and lawyers?
The fact that the LAWYER for the copyright owner of Kookaburra wants 40-60% means nothing. The judge is not obliged to give it to him. It is within the judge's power to conclude that the plagiarism was incidental to the song's success and therefore merits only a purely symbolic award. Here, this is from Wikipedia:
"[N]ominal damages are very small damages awarded to show that the loss or harm suffered was technical rather than actual. Perhaps the most famous nominal damages award in modern times has been the $1 verdict against the National Football League (NFL) in the 1986 antitrust suit prosecuted by the United States Football League. Although the verdict was automatically trebled pursuant to antitrust law in the United States, the resulting $3 judgment was regarded as a victory for the NFL. Historically, one of the best known nominal damage awards was the farthing that the jury awarded to James Whistler in his libel suit against John Ruskin. In the English jurisdiction, nominal damages are generally fixed at £2."
Beyond any doubt, the damages Larrikin will receive will be purely symbolic. Effectively, the court will say that Men At Work did use Kookaburra, that Larrikin as copyright holder suffered no harm, and therefore is not really entitled to anything more than a nominal award to show that his copyright was violated.
The "fairly typical" referred to in the title of this past, is the tendency for people to excoriate and condemn copyright and intellectual property law, and legal process in general, without really understanding anything about it.
Of course there is a statute of limitations: For copy-right, it's something like 70 years after the death of the original author. For Kookaburra, that still has a while to run.
The reason this came up now is that some musicians noticed it. On TV. On a popular TV show about popular music, with musicians who love music and think it and live it and write it and know it and laugh about it and notice it.
The other interesting think is that the Kookaburra riff is part of the arrangement, not part of the melody they wrote and performed.
That gives the copyright holders a possible cut of the recordings and sheet music, but not a cut of the authors cut. This one will be in court for a while yet.
The reason for the action now is...a snatch of "Down Under" is used as part of the Australian Tourist Board's "Where the bloody hell are you?" ad campaign. Its massive. And I'm betting Colin Hay gets a tiny little royalty payment every time the ad is aired. So it'll soon mount up.
Rich pickings to be had for a foxy lawyer.
Kookaburra is a Campfire/Nursery School song. Since when did anyone have to pay royalties to perform this song? At best the flute line, "Kookaburra sits on an old oak tree" notes are just a nod to "The land down Under"/Australia heritage.
Those notes have barely anything to do with the song. Give them .05% royalties if they insist, but even that's ridiculous
Yet songs like Sublime's "What I got" get away with blatantly ripping off the Beatles "Lady Madonna." . No lawsuit there.
Yes. from "Early in the morning..." until"...M-F**ng riot" try singing the first verse from "Lady Madonna". Go ahead and sing it:
"Lady Madonna, children at your feet
Wonder how you manage to make ends meet
Who finds the money when you pay the rent
Did you think that money was heaven sent"
Men at Work couldn't (maybe they could have without the internet & press of today), but current artists "borrowing" art from other artists should make an effort to recognize & compensate "accordingly" for what they borrow.
bugger, no icon for that.
I saw it on BBC news last night, couldn't see the resemblance between the two at all..
I saw the lawyer, my word, he is a kid, I don't think he is old enough to even know the song from MaW in the first place! Smug little git.
Honestly, copyright is out of control, RMS was right.
Back in the late 80's when I was learning to play guitar and trying to write my own stuff. I had a mate in a signed band who's bedroom was basically a home recording studio. So every now and then I would trudge up to his house with my guitar to record some of 'my' riffs.
Almost every time I would proudly play my latest piece and he would say "ah that's sleeping with my whore" by some obscure danish rock band etc... - and then get out the album & play me the track.
Obviously it wasn't even unconscious plagiarism as I only listened to floyd, rush, genesis, 70's pop ballards, The Police and classical music! Oh and Hawkwind, but don't tell anyone :/
There's only so many notes & once you limit the time signature & keys to the more popular forms it's very easy to come up with the same idea someone else has. It is only in the whole song, lyrics, melody and production etc... that music begins to have a chance of any originality.
I really liked Men At Work, they were a band with integrity. It's really fecking annoying that these woodlice have crawled from the woodwork to claim a totally unjust cut. Is there any chance of appeal? Hopefully the judge will piss on his 40%-60% claim.
Blue For You - Men At Work
It's a Mistake - Men At Work
What the? It wasn't plagiarised at all, it was paraphrased, the song was about Australia so referenced one of the most quintessentially Australian songs, what were they supposed to do? Also @janimal and others, of course this is no accident, oh yeah the songs about Oz, and just happened to have the riff from one of the most famous Aussie songs but that was an accident because if Motorhead wrote enough riffs they would accidentally come up with a song that sounded like "Waltzing Matilda". Come off it.
Of course they have no case to answer, unless Vegemite are going in for a cut as well.......
I was always taught that the "fair use" was 8 bars or less.
second. I don't remember my 1963 5th grade class paying royalty's when we were taught the complete original song. Laugh laugh kooka burra, laugh kooka burra, gay YOUR life must be.
Three, to whom did said Co. pay to receive said assignment ? let's see 1934 plus 27 years ... it was re-copyrighted in 1961 ?
(Musicians - I just use that as an illustration - no offence implied) - will eventually rewrite the entire works of Shakespeare? Isn't that the key? Or as I and another poster have alluded to, they merely mimicked the sound of the bird?
For a simple example, the hymn 'How great thou art' takes a riff from Sibelius' Finlandia. Song created by a Swede, sung (in Russian first) by a British missionary in russian, and put to music by a lady composer (The name 'Mary Bell' comes to mind, but I can't find it). Who gets the 'wedge' for that??
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