Music Copyrights and Wrongs – Time to Kook a Burra, Mate!

The mainstream music world was rocked recently. No, it wasn’t because new illegal download figures had been released. And it wasn’t because the Stones had announced their retirement. It was all due to a lawsuit being upheld against the writers of an iconic 80s anthem.

Australian Federal Court judge Peter Jacobson ruled that the flute passage in Down Under, Men At Work's popular new wave ode to life in the antipodes bears a resemblance to Kookaburra Sits In The Old Gum Tree, a children's folk tune written 75 years ago by a humble Aussie schoolteacher.

"I have come to the view that the flute riff in Down Under . . . infringes on the copyright of 'Kookaburra,' because it replicates in material form a substantial part of Ms. Sinclair's 1935 work," stated the judge in his ruling. Men At Work’s lead singer and songwriter, Colin Hay, maintains that the flute passage was unconsciously borrowed by the band’s flute player (not a writer of the song) during a performance, several years after it was written. The brief interlude, therefore, was part of the arrangement, not a part of the original composition.

Hear for yourselves:

To me, though, the question shouldn’t be whether a riff was borrowed consciously or unconsciously, or was part of the composition or the arrangement. And it’s not about who owes whom money. The question now is whether culture can grow and thrive under conditions where a few notes can land you in a courtroom.

Copyright exists to give artists a monopoly on their work and to incentivise further creativity — this benefits society, because we all want new music and art, and the more the better. Too much regulation, though, and copyright starts to stifle creativity. No art, whether it’s literature, painting or music, is created in a vacuum — all works borrow (consciously or not) from the artistic milieu in which they were conceived. If an artist has to be afraid lest a tiny corner of his or her composition contains a recognisable element from somebody else’s, art suffers, and society suffers.

As Harvard copyright professor Lawrence Lessig has pointed out, where would writing be if you had to secure permission from the rights-holder of a text when you wanted to quote a paragraph for illustration or review? It’s too absurd to contemplate. Yet in other media, we are headed increasingly in that direction. It’s a good time to be a lawyer, but not to be an artist.

That there was a connection with the Kookaburra song was seemingly taken as a fait accompli by the judge, but I can’t remember it ever entering my mind, and friends that I’ve asked are similarly confounded. Voltaire once said that anything too stupid to be said is sung. Judge Jacobson should have dusted-off an eight track deck prior to handing down his queer judgement.

The judge made much of Hay’s admission of conscious or unconscious references, but there hasn’t been a piece of music written that wasn’t unconsciously referencing some past song, at least since Mozart (he was the deaf one, wasn’t he?). Robert Plant was gracious enough to admit that songwriters are one long line of beggars and thieves, and how can that not be so.

I think any reasonable person would suggest that whatever similarity was found, the supposed lifting of a few notes added exactly nothing to the value of the work, or its popularity, and should be compensated at that level. And that’s before we even get into the argument about whether copyright should be maintained some 75 years after the original ditty was penned, and a decade or so after the writer’s death.

The money is a big issue, but it’s the principle that stinks.

After the surprise ruling, Hay published a lengthy and very emotional statement. "The copyright of 'Kookaburra' is owned and controlled by Larrikin Music Publishing, more specifically by a man named Norm Lurie. Larrikin Music Publishing is owned by a multi-national corporation called Music Sales. I only mention this as Mr. Lurie is always banging on about how he's the underdog, the little guy. Yet, he is part of a multi-national corporation just like EMI Music Publishing. It's all about money, make no mistake," he wrote.

You know, Colin has a point.

"It is indeed true, that Greg Ham unconsciously referenced two bars of 'Kookaburra' on the flute, during live shows after he joined the band in 1979, and it did end up in the Men At Work recording," Hay conceded. "When Men At Work released the song 'Down Under' through CBS Records (now Sony Music), in 1982, it became extremely successful. It was, and continues to be, played literally millions of times all over the world, and it is no surprise that in over 20 years, no one noticed the reference to 'Kookaburra.'"

Well, Colin certainly has a point, there, too.

If any of the “Men At Work” did notice the imitation, they surely would have assumed that the song was ‘traditional’ and in the public domain. A payout to a rights-holding company nearly a century later in no way helps the author. It does nothing for struggling artists today, just as none of the millions paid for his paintings go to Vincent Van Gogh. Property law and art are poles apart. The law should change.

The most likely thing, I reckon, is that flautist Greg Ham “quoted” the riff as a clever and witty way of underlining and reinforcing the Australiana vibe of the song. Quoting is a jazz expression used when a soloist consciously references another song, generally during an improvisation. It is a common device and it is generally understood to be a compliment, not a rip-off. Maybe if they’d used that line of defence and offered some sort of compensation to the Kookaburra people the whole matter could’ve been settled amicably. Dunno. It’s all about money, I hear.

However, now that His Honour has handed down his verdict, can we expect that common sense takes control and damages are assessed at say $100, with all parties to pay their own costs? Sadly, I doubt it.

I went to see the musical Wicked the other day. Unmistakeably in the overture there are a few bars of Somewhere over the Rainbow. But I’ll shut up for $50,000.

Of course, this particular case occurs in the middle of a world-wide panic amongst luddite music labels over the matter of illegal downloading and file sharing, so I wonder if the times just did not suit Hay and his co-defenders?

Now, there might be something of a witch-hunt mentality surrounding illegal downloads (though I don’t think many professional musicians think so), and there is certainly a good argument that current copyright laws are badly drawn, have become draconian and exploitative and are inhibiting creative expression, the complete opposite of what they were originally designed to do, but it seems to me that even if all that were not the case, there is still a minor argument for compensation being paid to the Kookaburra copyright owner.

But that compensation should be fair. I saw an article in the aftermath of the case where Norm Lurie suggested he was seeking 40-60% of the royalties from Down Under and that strikes me as insane, even as a bargaining position. Less than one percent would be reasonable for “his” contribution to the track.So I feel a great deal of sympathy for Colin Hay. In part because he’s a great musician — I’ve seen his solo shows a bunch of times and many of his solo albums are simply brilliant — and in part because I think it really would be a serious injustice if he was forced to cough up 40-60% of the royalties from Down Under. But in an age where musicians, quite legitimately, worry about their work being stolen in the form of illegal downloads and other sorts of unauthorised transfers, and where major labels have made a point of suing individuals over such infringements, you can hardly expect musicians themselves to be exempt from having their use of copyrighted material questioned.

Possibly the most famous plagiarism suit is the 1970 George Harrison classic, My Sweet Lord vs. the minor 1963 Chiffons’ hit, He's So Fine.

George was gigging in Copenhagen with Delaney and Bonnie in late ‘69. He remembered the song that became "My Sweet Lord" was conceived when he slipped away from a yawn-inducing press conference and began "vamping" some guitar riffs, fitting the chords to the words "Hallelujah" and "Hare Krishna." Later, members of the band joined in, fired-up a doobie and the dreamy lyrics developed from there. Although Harrison is solely credited with the birth of "My Sweet Lord," the song obviously had many mid-wives. Legendary keyboard side-man and ad-libbing genius Billy Preston was also in attendance that day.

In 1994 John Fogerty was sued for self-plagiarism after leaving Fantasy Records and pursuing a solo career with Warners. Fantasy still owned the rights to the CCR library and sound. Saul Zaentz, the owner of Fantasy, claimed Fogerty's song "Old Man Down the Road" was a copy of the CCR toon "Run Through the Jungle." The court, in a moment of inspired ‘juris obvious’, made the landmark judgement that an artist cannot plagiarise himself. Zaentz was arrested later that night for raping himself.

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Have a go at these tunes...no worries, you won't get sued for playing them.