back to article Men at Work appeal Down Under plagiarism ruling

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 …

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  1. Rob 101

    Am still wondering..

    How, even if it was a recognisable rip-off, the flute riff constitutes 40-60% of any aspect of the song.

  2. Anonymous Coward
    Anonymous Coward

    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?

  3. criscros
    Flame

    Really?

    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.

  4. David Benoit
    Megaphone

    Time Machine

    is it 1980 again? huh? Seriously, this song was released THIRTY YEARS AGO!

    1. Shaun 1

      RE: Time Machine

      Yes, but the people that took MAW to court only bought the rights recently

    2. Trevor 7

      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.

    3. Mark Eccleston

      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.

      1. Christopher E. Stith
        Linux

        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.

    4. Anonymous Coward
      Coat

      Thanks David!

      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....

    5. David Gosnell

      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.

    6. lglethal Silver badge
      Stop

      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...

  5. Paul Durrant

    Obvious infringement

    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.

  6. J 3
    FAIL

    Hateful

    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.

  7. M.A
    Coat

    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.

  8. Aristotles slow and dimwitted horse Silver badge
    FAIL

    Crikey...

    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

    1. Christopher E. Stith
      Alert

      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.

  9. Christos Georgiou
    FAIL

    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?

    1. Someone Else Silver badge
      Alert

      More thievery...

      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"?

      1. Anonymous Coward
        Anonymous Coward

        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

      2. Shades

        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!!

      3. martin burns
        Boffin

        Werewolves of Alabama

        See also Back in Black for the exact same chord sequence.

        Evidence m'luds:

        http://www.audiodile.com/mp3s/Mashup/AudioDile%20-%20More%20Werewolves%20of%20Alabama%20(Boston%20Vs.%20Lynyrd%20Skynyrd%20Vs.%20Warren%20Zevon).mp3

        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:

        http://vjbrewski.multiply.com/video/item/5

  10. TRT Silver badge

    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.

  11. Rabbers

    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.

    1. Allan George Dyer Silver badge
      Coat

      Perhaps...

      your comment is where the great Douglas got the idea from?

      Mine's the one in the anachronistic style.

    2. Steven Knox
      Thumb Up

      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.

    3. Gordon is not a Moron
      Happy

      I have a cunning plan...

      patent... patenting, then everyone has to pay up everytime they do anything, the cash will come rolling in.

  12. Paul Showering Silver badge

    Really?

    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.

    1. The Indomitable Gall

      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).

  13. Aaron 10
    Pirate

    Seriously...

    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.

  14. Squits

    They saw

    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.

  15. anarchic-teapot

    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?

  16. Faceless Man

    "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.

  17. Steen Hive
    FAIL

    So sue me, ya twats.

    "Larrikin sits by an old gum tree,

    waiting like a troll for the copyright fee"

  18. Anonymous Coward
    Anonymous Coward

    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?

  19. John Stirling
    Happy

    funny though...

    ...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.

  20. Anonymous Coward
    Anonymous Coward

    Musical ear?

    ... anyone who is a Musical Rear more like!

    Do you live in a right wing, narrow minded land Down Under?

  21. Christian Berger Silver badge

    Cannot watch the video

    I cannot watch the video, it's not availiable in my place. :(

  22. Publius Aelius Hadrianus
    Troll

    Vegemite(R) sandwich

    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.

  23. Captain TickTock
    Coat

    They could always charge it to Kraft..

    ...For advertising Vegemite

    Mines the Driza-Bone

  24. Charles Manning

    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.

    1. Shades

      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!

      Cynical? Moi?

  25. Steve Roper
    Flame

    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.

  26. Anonymous Coward
    WTF?

    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".

  27. sT0rNG b4R3 duRiD
    WTF?

    Fucking Lawyers

    Put them out on a boat, sink it.

    And then sue them for infringing the IP from 'The Titanic'.

    1. Ken Hagan Gold badge

      Re: While there are some similarities

      I'd steer clear of 0x7C2E33C7B then, or Larrikin Music will sue your arse off.

  28. Bryn Smith

    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...

  29. Anonymous Coward
    Anonymous Coward

    30 years?

    Wow. That song sucks just as much today as it did back then.

  30. Guz

    Closest comaprison I could find

    Quick search found this:

    http://www.youtube.com/watch?v=eqOIdtKZTG4

    It's close, but not quite. FAIL

  31. Winkypop Silver badge
    Thumb Down

    Simple case of legal prospecting

    The system is bust.

  32. James Hughes 1

    I listened to both

    with a musically rather uneducated ear.

    They sound completely bloody different to me!!

  33. Big-nosed Pengie
    FAIL

    Broken

    Copyright is broken. Srsly broken. Why are politicians such idiots as to pass these laws?

  34. Tim Bates

    One bloody bar - tops

    It's like one bar that's sort of similar. From a 3 and a half minute song... Hardly grounds for copyright arguments. I really hope the appeal goes well.

    If this stands, I'm writing a tune that is every possible combination of notes you can have, recording it, publishing it on the net, and waiting for 5 years. Then I'll sue every music publisher out there.

    1. Ken Hagan Gold badge

      Re: One bloody bar - tops

      "If this stands, I'm writing a tune that is every possible combination of notes you can have, recording it, publishing it on the net, and waiting for 5 years. Then I'll sue every music publisher out there."

      I can't recall the details, but many years ago I was told of a reputable composer who had written out a large number of sections (a few bars each?) of music with the intention that performers could play arbitrary permutations of them and create an enormous number of different melodies. The musical and mathematical minds have much in common and it seems unlikely that only one composer has had this idea over the centuries.

      If you are willing to break it down to "themes" of just a few bars (as we're doing here) it strikes me as very unlikely that any modern music that is actually pleasant to listen to is not actually to be found in earlier work.

  35. Paul Smith
    FAIL

    I hiope they win!

    My great grandfather used to whistle a ditty with his butt cheeks that sounded sort of vaugely like that girl guides riff, and if they win this case, they will have enough money to make it worth my while sueing them.

  36. Anonymous Coward
    Anonymous Coward

    The welsh folk song...

    ...is what would be termed "prior art" in a patent case. Not sure what the equivalent is in copyright law, but there must be something. I do know that in UK copyright law at least originality is one of the criteria required in order for the copyright to be considered valid. I think that the best way for MaW to challenge this ruling would be to challenge the validity of the copyright. If the copyright is declared invalid then there would be no case to answer. If that were the case then the next step would be for MaW to claim their costs back on the grounds that the original case brought against them was invalid.

  37. Darles Chickens

    A musician's perspective

    Two parts of the Kookaburra melody are quoted in the Men at Work song, each 11 notes long. The first line ("Kookaburra sits in the old gum tree") comes at 0:53 and 1:56, and the second line ("Merry merry king of the bush is he") comes at 0:12, 0:58 and 2:00.

    While, melodically, the notes are identical (albeit in a different key), harmonically they appear in a totally different context. Kookaburra is in a major key and the chords in each line are simply I - IV - I. In the key of C major, this would be represented by the chords C - F - C. 'Down Under', by contrast, is in a minor key (or perhaps more accurately, the Aeolian mode), and the chords are I - VI - VII. In the key of Am (the relative minor key of C major, for comparison), this would be represented by the chords Am - F - G.

    This is makes quite a substantial difference to the 'sense' of the melody, which is why probably very few listeners would ever have noticed the lifting of the melody line in the past.

    The whole copyright claim is ridiculous, particularly if the Kookaburra melody has existed prior to the current copyright holder's claim. No matter how distinctive it may be, it's an 11 note motif for crying out loud, reworked into a totally different context. I didn't hear John Lennon making noises when Oasis stole the opening two chords from his song 15 years ago, EH?!!!!!

    1. MadonnaC
      Joke

      Noises?

      If he had made noises, they probably would have consisted of hammering on a wooden lid with yells of "let me out"

  38. dfish

    Greed is universal

    This guy makes our Chicago mob proud! Just how greedy and desperate can someone be? This dolt never noticed the similarities 30 years ago? This guy should be made a playtoy for the Orcas in SeaWorld or maybe used as target practice for Quigley.

  39. I. Aproveofitspendingonspecificprojects 1

    Without the musician in the tree, no way!

    Listening to a dried-out combo on you tube, dreadful drongo

    There is a strange lady, she made them nervous She took took them on with her attorneys

    And she said, "I wrote your tune down under you boys gonna give me plunder

    Can't you hear, can't you hear the kookaburra? You better run, you better take cover."

    Gonna 'peal to the man in Brussels? EMI is rich and full of muscle

    I said, "Do you speak-a my language?" EMI has got a knuckle sandwich

    And he said, "I come from a land down under Where beer does flow and men chunder

    Can't you hear, can't you hear the thunder? You better run, you better take cover."

    (Yeahhh!)

    We put a flautist in a tree -don't ask why it's mystery, and he'd nothin' much to play

    I said to the man, "And the rest is history

    Because I come from the land of plenty"

    And he said, "Oh, you come from a land down under? (oh yeah yeah) Where women glow and men plunder?

    Without that clip there'd be no thunder (ooohh) Without that clip nothing to recover."

  40. Morrie Wyatt

    Blinded by the light

    Then where does it put Eric Burdon with his song "Blinded by the light" where he blatantly rips off "chopsticks"?

    I can't recall any legal action there.

  41. Publius Aelius Hadrianus
    Happy

    Groovy

    While we're on the topic - does anyone else remember that annoyingly hummable Phil Collins song "It's a groovy kind of love"? It was so obviously a rip-off of Clementi's Rondo from the Sonatina in G major, op. 36 no. 5. I just wanted to put that on record because it's been really bugging me for the last 22 years.

    Unfortunately Mr Clementi died in 1832, so there's clearly a need to extend the Copyright entitlement period to Life + 160 years so the Clementi family can then sue the ass off Phil Collins.

    (so to speak)

    1. Anonymous Coward
      Anonymous Coward

      Not a Phil Collins song

      If you're going to pretend to know something about musical history. That song wasn't written by Collins. It was originally written in the mid sixties by (IIRC) a couple of teenage girls in the US.

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