EMI Music has lodged an appeal against the ruling that the flute riff in Down Under by Oz band Men at Work was plagiarised from Lucky Country kids' favourite Kookaburra Sits in the Old Gum Tree. A Sydney court earlier this month ruled in favour of Kookaburra copyright holder Larrikin Music, decreeing the offending flute part was …
Am still wondering..
How, even if it was a recognisable rip-off, the flute riff constitutes 40-60% of any aspect of the song.
about the 40-60%
After their lawyer's take, the 40-60% will be down to about 5% which is probably a more accurate assessment of time that the flute riff appears.
The Big Question
The big question is why now? Shirley Down Under is about 25 years old. It's not like anybody could claim not to have heard it back when it was in the charts, it was everywhere over here I can only imagine that it was played with even more irritating frequency in Australia. There really ought to be some sort of time limit on claims like these. Five years should be plenty.
To be honest I think composer's copyright is ridiculously long (in the UK isn't it something like life plus 70 years?). I don't see why it should last any longer than a patent.
Having heard the two back to back and seen them both transcribed to my humble musical ear there are similarities, but they are not the same tune. Having some similarities is surely not enough to constitute breach of copyright?
The answer to the big question...
The reason now is that no-one noticed the similarity until a trivia question asking what folk song could be found inside Down Under appeared on a TV music program called Spicks and Specks (think Never Mind the Buzzcocks but with particularly pathetic attempts at humour!). It was aksed in that program which unfortunately for Men at Work was being watched by the guy from Larrakin Music and court proceedings started about 3 months late...
The song is from 1934 and they're bitching about copyrights/plagiarism/whatever?? They want 40% of the profits from a modern song for a flute riff?
The bloody thing belongs in the public domain. Not only should this be thrown out of court, they should reform copyright to last less than 500 years. Bunch of cheapskates, sitting on their arses doing nothing and expecting everyone to pay them for it.
is it 1980 again? huh? Seriously, this song was released THIRTY YEARS AGO!
RE: Time Machine
Yes, but the people that took MAW to court only bought the rights recently
Of course you would wait
Wait 30 years for it to rake in revenue then apply for 60%. If you alerted the band to the infringment in 1980 they would have removed the riff and you would have no one to sue.
Makes you feel old doesn't it? Wasn't that the same year that Tracy Ullman released Breakaway and U2 did New Years Day! I think I need a lie down, I feel all dizzy, must be old age....
My sentiments entirely
I may well be in the minority here in believing there is a case to answer, but pursuing this so long after the event sounds more like an opportunist lawyer after a cynical aussie buck than some impoverished girl guide.
What about limiting one's damages?
It is a legal duty in most jurisdictions to mitigate the damages done to one's self rather than allowing damages to build in order to sue. Tux, since Caldera is still trying to sue themselves a fortune for having been a Linux company.
It's quite plain that the Kookaburra tune is used (in part) in the flute accompaniment.
But the damages awarded are insanely high. The infringing use is a very small part of the song, and not part of the song's main melody at all. How it can be just to award 60% of earnings is beyond me. I would hope that they get it reduced on appeal to a tenth of that or less.
Nineteen fucking thirty four!? Really!?
Assuming there is really a copyright problem: Is Marion Sinclair going to get any of the money? Fuck off then. This system is so broken and immoral, it's not even funny.
you are rigt
Time Machine you are right iyt is about 30 years old and the kookabora thing 75 i think. All copyright needs a overhaul 5 years is long enough for any recording ten for the composer after that public domain. if thhey dont like it well compose more songs that is inovation that copyright is ment to encourage.
mine the coat with a pirate bay server in the pocket.
Surely this can only lead to...
Joe Satriani vs Steve Vai in "he stole the sound of my G chord" scandal.
McCartney vs Gallagher in "he stole our whole back catalogue" scandal.
Every MOBO/R&B* artist vs Every other MOBO/R&B artist in "it all sound the fuckin' same to me" scandal.
Really!!! This needs to be thrown out.
* R&B - Repetitive and Bland
John Fogerty got sued for writing and singing songs s in the style of John Fogerty..
Seriously, he was sued for plaigiarism of all things. For one song he wrote solunding too much like another song he wrote.
Now's the time to deal with thieves!
Then how much Scorpions should pay to Lynyrd Skynyrd (rather, their record company) for the "homage" they paid to the 1971 “Simple Man” by recording their “Always Somewhere” in 1979?
How about both Warren Zevon (or his estate) **and** Lynyrd Skynyrd (and their estate) suing Kid Rock for his blatant rip off of both "Werewolves of London" and "Sweet Home Alabama" in "All Summer Long"?
Just All Summer Long?
Kid Rock would get off very lightly if it was just one song he got sued over, his entire back catalogue is full of rip offs
Clearance and bootlegs
As we live in, dare I say it, more enlightened times (where sharks are no longer just fishy predators in the sea) Kid Rock (or his label/publishers) would have cleared/licenced the use of "Sweet Home Alabama" and the other track beforehand. Although sometimes, this can happen retrospectively. Many popular "unreleased" bootleg tracks in the clubs that end up getting officially released only get permission to use bits of other songs once they realise there is money to be made.
A perfect case in point is Black Legends "The Trouble With Me" which used Barry Whites vocals over the top of a new track. The bootleg version (which used Barry Whites original vocals) was floating round the clubs for ages but the use of the vocals hadn't been licenced/cleared (probably because Barry whites publisher probably WOULDN'T have given Black Legend permission in the first place) but once it was realised that the track WAS popular and pockets could be lined... (although, for the official release, the vocals had to be resung... by a Barry White sound-a-like)
The point is this sort of thing happens ALL the time and sometimes it the ONLY way to get a bootleg/remix officially published... Artist A thinks they are onto a winner but know they wouldn't ordinarily get permission to use Artists B's work (because Artist B's publishers are notoriously defensive of Artist B's work or Artist B "doesn't" do remixes) so Artist A "releases" a bootleg version. If the track isn't as popular as Artist A expected and it languishes in obscurity then Artist B's publisher will either not know about it or, even if they do, not really care because there is no money to be made from it. However, if the track is popular thats when deals are made, and its the ONLY way the deal could have been made. Often, as Artist B obviously stands to make money too, their publishers will kick up bit of a "stink" (while cutting the deal!) because it means a bit of free publicity for both Artist A and Artist B, AND raise the profile of the track.
I believe another example of this is The Freemasons "Unexpected", which used Alanis Morisettes vocals, which was originally "released" as an unofficial bootleg too.
Well, there's your useless facts for the day!!
Werewolves of Alabama
See also Back in Black for the exact same chord sequence.
But then again, there's the Police -v- Ben E King (-v- almost every artiste recording in the 1950s) for Stand by for Every Breath You Take:
A more wily record company...
would send the Men At Work recording through a wormhole back in time to before the Girl Guides competition and then sue them under the same copyright laws.*
*of course, I need to attribute this comment to the late, great Douglas Adams, just in case his estate sues.
your comment is where the great Douglas got the idea from?
Mine's the one in the anachronistic style.
No, you don't...
Just go back in time to before he wrote that bit, write it down yourself (on a cereal box, for maximum irony).... oh, my head's hurting already.
Copyright and Patent stuff
if taken to it's natural conclusion, surely leads to headlines such as:
"Millions were stopped from attending work today!", with the explanation that many of their jobs included aspects that were quoted as being "ever so slightly similar to something that somebody's grandad once did in the past at some point".
Note to self... Must patent something.
I have a cunning plan...
patent... patenting, then everyone has to pay up everytime they do anything, the cash will come rolling in.
OK, I have more letters after my name for various music qualifications than most people have in their names, and I can solemnly swear that the only similarity between these two tunes is that they are both written in a major key.
Added to that, Marion Sinclair is said to have taken the tune from a Welsh folk song in the first place.
Not just the tune...
Even the lyrics bear a striking resemblance to the Welsh song (although there's no telephone wires or tails on fire in the Welsh blackbird's case).
They're not "sampling" the original song. Whatever happened to making a song that sounds similar to a popular song but is not quite the same? They do this all the time on commercials, and even in elevator music. Why should this be the same?
I heard that people are being sued for similar drum riffs to their own. C'mon. There are only a few ways to beat a drum in a specific tempo. Stop the madness.
how well patent trolls have been doing and decided to have a go for themselves.
Tell 'em they can have 1% or they can lump it.
Highly trained musical ear?
Well, I definitely had one when the song came out, and I didn't spot any similarity - apart from using the same Western musical conventions.
Maybe they meant a highly trained litigious ear?
"Educated musical ear?"
Seriously, it's pretty bloody blatant. It was one of the first things I noticed about the song when it was released. But it was clearly in the sense of an homage, not an attempt to rip off the original.
Does the 10 note limit still apply? (Did it ever apply?) A quick check shows that the snippet in question is 11 notes, so if they expect 40% over a one note infringement, then they ought to be thrown out of court.
Finally, as others have said, why now? Did it really take 30 years for anyone to notice? If so, it hardly seems reasonable for them to jump in now. Especially as they are not the original writers or copyright holders for the song, and are jumping on it now.
So sue me, ya twats.
"Larrikin sits by an old gum tree,
waiting like a troll for the copyright fee"
Like I said before...
"Down Under" is now used by the Aus Tourist Board for its TV adverts. So, as its currently generating revenue, its fit for pillaging.
Crazy though, this- I think there is a recognizable bit of "kookaburra", and as the flautist is up a tree while playing it, I think MaW were aware of this. But its nothing more than a tribute.
What next, whoever owns the copyright for "Waltzing Matilda" pursuing the Stranglers?
...that some of the proponents of eternal copyright (EMI/BMG etc) have been bitten by the idiocy of it.
Plus, 2:24, Christopher Ecclestone, or just my imagination? Presumably from when he was Dr Who.
... anyone who is a Musical Rear more like!
Do you live in a right wing, narrow minded land Down Under?
Cannot watch the video
I cannot watch the video, it's not availiable in my place. :(
I feel so sorry for Larrikin Music. Think of all the hard work and effort they put into writing and performing Kookaburra. How they must have wailed and gnashed their teeth when they recently discovered that people around the world had been paying Men-at-Work for that blatant rip-off rather than paying them for the rights to sing Kookaburra.
It is a sad tale of great woe.
Copyright (c) 2010
Hadrian's Emporium ltd.
Written and performed?
Larrikin Music didn't write OR perform Kookaburra. They, only recently, purchased the rights to it. Something tells me that, even before the TV program that supposedly made the connection between the two songs aired, someone at Larrikin had already made the same connection... so they bought the rights to Kookaburra and, SHAZAM, 30 years worth of royalties please!
They could always charge it to Kraft..
...For advertising Vegemite
Mines the Driza-Bone
Good to see...
... the spirit of Ned Kelley is not dead.
Somehow this is all rather ironic considering Kookaburra is supposedly a rip off of some Welsh song about planting leeks.
If nothing else
This demonstrates how modern copyright law is nothing less than a crime against humanity. For a song written before WWII to STILL be in copyright is an obscenity. So much for the Statute of Anne, which gave you a more than fair 14 years after publication. This is nothing to do with protecting an author's work and everything to do with gaining ironclad control over popular culture. It is ironclad despotism in its vilest form.
But notwithstanding that, while the Kookaburra riff is recognisable in Down Under it's no more than 4 bars, or about 5 seconds - and my understanding is that you can actually include such short samples without breaching copyright. But whether that is true or not, to claim it is 40-60% of the song is patently ludicrous.
I usually hate EMI winning lawsuits - they are a wax-cylinder company after all - but I'm definitely with them on this one. If nothing else, if they win it, it will set a good precedent that a copyright pig - and the plaintiff in this IS a pig - can't bloodsuck other creators merely because five fucking seconds of their work is similar to the copyright pig's.
While there are some similarities
the flute riff is clearly not the same as the Kookaburra tune.
The big question is, how many notes in a row need to be exactly the same to constitute copyright infringement? At most there are around 3 or 4 notes in a row that are exactly the same, but that could be said of many tunes.
It's like me publishing something containing the sequence "123456789" (let's face it, music can be expressed as number sequences) and then suing anyone who publishes anything containing the sequence "12245" because it is "substantially similar".
Re: While there are some similarities
I'd steer clear of 0x7C2E33C7B then, or Larrikin Music will sue your arse off.
Put them out on a boat, sink it.
And then sue them for infringing the IP from 'The Titanic'.
Limits on the claim
I heard an interview on the radio with the music company exec representing the "Kookaburra" song and he said that they could only claim a percentage of the last 6 years' profits from Land Down Under. It seems that Men At Work have some kind of case to answer for - they should have negotiated with the copyright holders instead of letting this go to court...
Wow. That song sucks just as much today as it did back then.
Closest comaprison I could find
Quick search found this:
It's close, but not quite. FAIL
Simple case of legal prospecting
The system is bust.
I listened to both
with a musically rather uneducated ear.
They sound completely bloody different to me!!