Am still wondering..
How, even if it was a recognisable rip-off, the flute riff constitutes 40-60% of any aspect of the song.
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 …
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 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.
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...
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.
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
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!!
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:
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.
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.
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.
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.
"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?
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.
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!
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.
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".
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...
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.
"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.
...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.
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?!!!!!
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."
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."
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)
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