Copyright vs cultural references – Men at Work punished for two bars in hit song

What the Kookaburra vs Down Under case reveals about copyright in Australia:

  1. Copyright terms are absurdly long;
  2. Copyright law is used to stifle creativity against the public interest;
  3. There’s presently insufficient protection for homages or references in music.

Regarding the first – this is a 2007 case about a 1981 song that referenced TWO BARS of a 1934 round. This is absurd. What possible commercial right should the publishers of a 1934 song have had in 2007? Why should Australian legislation, passed by Australian governments supposedly representing the public interest, grant a corporation a monopoly to control a popular folk song almost fifty years after it was written?

Secondly – if copyright law had been understood in 1981 to deprive an Australian artist of musically referencing part of our cultural heritage, then that simply wouldn’t have happened – they’d have left the reference out. How would that have been in anyone’s interest? Surely it’s better for Australia if our artists are free to reference other cultural works without punitive consequence. Why on Earth – apart from mainstream politicians’ cowardly and corrupt deference to the lobbying dollars of the content industry, obviously – would we pass laws to punish them for doing so?

Thirdly, it is clear that the reference was not a parasitical “copy”, it was an homage. It was two bars in a three minute song. It referred listeners to the other song, rather than taking an audience from it. It was exactly the sort of thing that is part of a healthy creative environment in any medium, from book to film to television to music; from literature to satire. I mean, seriously, how did Men At Work‘s reference to the old song in any negative way impact on the right’s holder’s commercial rights under the monopoly that should have long since expired? If anything, the reference reminded contemporary listeners of the original material, and enhanced its standing and importance for a new audience.

As Colin Hay from Men At Work (a man who has, unlike the publishing parasites, actually contributed something worthwhile to this country), argued:

I believe what has won today is opportunistic greed, and what has suffered, is creative musical endeavor.

This decision is an indictment on the state of copyright law in Australia. If our politicians were in the slightest bit interested in preserving a thriving creative culture in this country, they’d be looking seriously at reforming it – at reforming the elements that have been used to come to this absurd decision (such as the inadequate protection for fair use), and at significantly reducing the ludicrously extensive terms they’ve granted at the behest of corporate IP interests.

They won’t, of course, and we all know why. It’s a pity voters keep letting them get away with it.

UPDATE: Via Lauredhel, the original Welsh tune that the Kookaburra song ripped off:

Also, Rob Merkel at Larvatus Prodeo and skepticlawyer’s take.

WHY ARE COPYRIGHT TERMS SO LONG, ANYWAY? Techdirt reports that the author of The Great Gatsby made $8,397 on his work; his daughter gets $500,000 a year from it. And asks –

The original purpose of copyright had nothing to do with creating a welfare system for the children of content creators

Quite.

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55 responses to “Copyright vs cultural references – Men at Work punished for two bars in hit song

  1. Norm Lurie. I remember him from when I worked at Festival Records during the 1980’s. He hasn’t changed much.

    This decision is beyond the pale.

  2. great post

  3. Apparently the kookaburra is only the merry merry king of the bush if he gets paid royalties in full.

    (I’ll probably get done for plagiarism, now)

  4. On the positive side, IP rights will take a further hit in the court of public opinion. This may make pollies a bit less receptive to the ovetures that are bound to be made in the wake of the iiNet decision.

    What really rankles with this one, is that the current copyright holder brought the rights from the Public Trustee after the death of the orginal holder.

  5. Oh, It’s A Mistake, this judgement. Clearly, for us it’s just Overkill, but for corporate interests it’s Business As Usual.

  6. I suppose the courts feel that they’re Helpless Automatons when faced with the current Copyright Act. The law’s the law, even if People Just Love to Play With Words. Problem is, this judgment will just drive references to cultural material further Underground, since fighting the corporate copyright interests is Touching the Untouchables – even the most pathetic (and tardy) copyright claimant can now Catch a Star.

    Sorry, RM. Yours were much better.

    Michael – I didn’t know that. That makes it even more absurd.

  7. Look on the bright side.. EMI lost 😉

  8. Copyright terms are absurdly long;

    I wasn’t watching last night but did the EMI fellow say this? I bet he’d change his tune if it was music that EMI owned the rights to. Elvis has been dead for 33 years, he’s still listed as an EMI artist, I should be able to download him for free….. Legally.

    Cliff Richard will never die but that’s fine I don’t want any of his songs. 😉

    If the EMI guy didn’t say any of that then ignore my post, but they’re still making buckets of money out of dead artists.

  9. That’s an interesting point. I wonder if EMI deliberately declined to make arguments that would be available to it, because it’s a publisher itself and doesn’t really want the copyright law to be reasonable.

  10. I just thought I heard the EMI guy say life + 70 years is excessive, though I wasn’t looking at the TV at the time, it would just be a bit rich if he did, EMI’s value would plummet if this date was changed. I agree and think life + 70 is excessive especially since the record/publishing companies invariably own the rights, the decedents don’t get a look in (often) The Jimi Hendrix foundation is a classic example, he had kids, they have nothing.

    Also I don’t like corporate record companies, they’re interested in sales, not art. I feel sorry for Men at Work, EMI….Pffft

  11. EMI probably just saw this as one of the swings and roundabouts of the current laws.

  12. It’s a load of shite. Musicians have been quoting each other since before sound recording existed, and it’s normally seen as a compliment to the original author. It’s 2 phrases, not My Sweet Lord (which was, IMHO, justified).

  13. I haven’t really had the chance to read up on this and form an opinion, but even if it was only 2 bars, it still forms part of something which Men At Work then went on to make money out of.

  14. I thin Paul Weller got off by admitting that he’d subconsciously copied the Supremes – ‘You can’t hurry love’ (listen to the intro of a Town Called Malice)

    And – believe it or not, Right Said Fred, ‘I’m Too Sexy’ has large chunks of the Hendrix Experience ‘Third Stone From the Sun’ (I picked it) but they did ask for permission beforehand.

  15. Don’t suppose you could clear my earlier post, Jeremy? Or anyone??? ( it’s awaiting moderation 5:31pm)

  16. “it still forms part of something which Men At Work then went on to make money out of.”

    So, Andy – do you think authors who quote another writer in their work at all, even two sentences, should pay that writer royalties?

    If so, you get that the consequence of that will be writers refusing to quote each other, and the literary culture being the poorer for it?

    Almost all created works build on what went before them.

  17. To answer your question, no – but that depends on the context. Then again, we aren’t talking about literary works though in this case.

    As I said, I still haven’t read much about it. I’m siding with the copyright holder for now, and I’ll come up with an argument to support that later.

  18. We aren’t talking about literary works, but music is analogous.

    Most composers reference other composers’ work – usually far more than two bars – and have done so for hundreds of years. It’s part of the musical language.

    For copyright laws to seek to stifle that now is absurd.

  19. Life + 70 years is excessive. You can thank the final 20 years on the Australia-US free trade agreement. It used to be life + 50 years, which is the international standard.

    Way to go sucking up to the Americans!

  20. AndyB, I understand what you’re saying but the bars in questions are hardly integral to the song. That’s my big beef. It’s barely even a sample. For the copyright owner to turn around and demand 50-60% of the royalties is a joke.

    I’d have a different position if they’d ripped off another song to a substantial extent, but they haven’t.

  21. Glad to see that most seem horrified by this judgement. I agree that Men at Work used the Kookaburra bars as a homage to the original – and what a fantastic homage it is: witty but warm, spot on in other words. And perhaps if this was all about the original songwriter getting some money for her creation then this might be justifiable, but the copyright is now owned by another party. It’s all judicrous and shouldn’t be allowed to happen again.

  22. This judgement is taking things to extremes. It’s difficult to think of any blues guitarist, for instance, who hasn’t ‘quoted’ riffs and licks from his or her predecessors. Ditto rappers. Changing chords from the first to the major third is arguably a hat-tip to the British invasion bands of the 60s. Intellecutal property ought to be abandoned, or reconceived entirely.

  23. The song was actually an entry in a competition. One of the early arguments in the case was whether she had given away her rights under the rules of the competition, the court decided that she hadn’t.

    For an excellent film about this issue see:

    http://www.ripremix.com/

    Also:

    “Margaret Sinclair wrote “Kookaburra” back in 1934 and submitted it into a competition being run by the Girl Guides for “A Singing Round with Music”. The published terms of the competition were:

    RULES for ENTRY.
    (a) The entrance fee for each entry in any of the Competitions to be 6d.
    (b) A prize of 10/6 to be given to the winner of each section.
    (c) The Competitions to be open to all enrolled members of the Guide Association in Australia.
    (d) All matter entered to become the property of the Guide Association.
    (e) The decision of the Judges to be final.
    (f) All entries to be accompanied by the entrance fee of 6d. also name and address of entrants.
    (g) All entries to be in by July 31st.

    (my emphasis)

    Miss Sinclair’s entry was the winner!”

    http://ipwars.com/2009/07/30/kookaburra-gets-the-vegemite-sandwich/

  24. The original riff was obviously copied from some poor exploited kookaburra who have never saw a penny for its efforts. Now evil humans are fighting over the spoils of this theft.

  25. That would mean that whoever holds the copyright to The Marseillaise (the french national anthem) would have picked up a bundle when Tchaikovsky wrote the 1812 Overture. If no-one owns it, maybe we could pick it up at the Public Trustee’s office?

  26. Good post, Jeremy. I’d never noticed or been able to pick the Kookaburra reference until repeated playings of the shared bars in the context of media reports of this judgement. My partner and I saw the original Spicks & Specks segment and weren’t able to detect it. Now of course I can’t help hear it if I listen to Land Down Under. She still can’t hear the similarity. The songs and the context of the bars in question are so dissimilar.

    It reminds me of painful experiences in high school maths, where, when following anguished mental gymnastics I finally understood how a problem was solved it seemed absurdly easy and I couldn’t believe it hadn’t been obvious all along.

    The clever thing Men at Work did in using the bars was to tap into subconscious memory of Australians, helping to amplify the overt references to national icons in the lyrics. I’d argue that this is one of the creative highlights of Land Down Under, albeit one of which I was not consciously aware until forced to confront it by this court decision. So, far from this being a derivative use for which royalties are payable, this is a major foundation of Men at Work’s creative achievement.

  27. OK. I’ve deleted the weird conversation a troll was having with itself – it was playing the part of confessions, me, and the troll, and having a rollicking time logging in and out of addresses and pretending to be other people.

    To what end, I don’t know, but the IP’s blocked. It was a matter of moments, compared with the many minutes of his own life that the troll has wasted.

    If he comes back, I’ll be happy to ban another IP. It’s no inconvenience at all.

  28. Well, the decision made the Irish Times (thanks to an Irish friend). Obviously this ruling will have implications for other musicians and songwriters. And I agree with THR: listen to any variety of blues musicians and you could be forgiven for thinking you’ve heard the same tunes before with another artist.

    And the comment above isn’t me btw. FTR I am no more interested in other commenter’s and blog owner’s relationships than I am their choice in Chai tea flavour.

  29. I know. Another IP banned.

    Seriously, dude has no life.

  30. I think this decision is actually absurd from a musical standpoint.

    Firstly, the “stolen” phrase actually contains different notes, because the original is in a major key and the “copy” is in a minor key. The only thing that is exact is the tempo.

    Secondly, the “stolen” section is the first phrase of the section; in “Down Under”, it is used as the last phrase of the section, which is part of the reason no-one picked it up earlier; it is out of context.

    Thirdly – and this is not a musical point, so much as a legal one – I know that intent doesn’t come into it; even if it is accidental, you can still get done for copyright infringement purely because something is similar enough to something that is already in the public domain.

    I gather from what Colin Hay said the other day that he had written and performed that song for a number of years before Men at Work recorded it. The flute part was not originally in the song; Hay certainly didn’t write it, it was written by the flute player. For me this raises an interesting point: how can you sue a songwriter for part of a song he or she DIDN’T write?

    Surely the legal responsibility for this falls on the shoulders of the flute player, who wrote the offending section and the record company who distributed the song, rather than the man who wrote the rest of the song that did NOT infringe copyright?

    I know that copyright law probably doesn’t work like that, but it’s one of the things that’s been bugging me. Why should Colin Hay take the rap for something he wasn’t responsible for?

  31. And its not just blues. The reggae ‘version’ has produced not only many great records, but also the immortal dictum “there is no truth only versions”.

    Sampling in dance and hip hop usually proceeds by way of upfront negotiation of the royalty split, which seems fair to all parties. Of course some copyright owners do not play ball – the mix of ‘Rockefeller Skank’ with the ‘Satisfaction’ riff never got clearance. Still anyone who wanted a copy could download it or buy a white label vinyl edition, so royalties earned on the use of the riff were nil. There is a lesson about industry greed in this.

    The unfortunate case is where the inadvertent use of an element of a song results in the payment of damages well in excess of what is usually negotiated in such situations.

  32. I meant to post this before but forgot to. Anyhow:

    One of the reasons I think this decision sucks is because of Jazz. Now, often a Jazz composer will just write the basic structure of a song – chord changes and maybe a basic melody – and a band will improvise over the top of that.

    So let’s just say that Louis Armstrong and his band are recording, and they play a song written by Kid Ory. They have a great old time and improvise their socks off, and everyone’s very happy with their performances.

    Next day they come back, and they’re playing a song written by Louis, that just happens to to be in the same key (not at all uncommon in brass bands). Everyone’s improvising away again, but Louis is momentarily stumped, so he thinks “hmm, this is in the same key as that one we did yesterday, I’ll sneak in a few bars from that song” and does, appropriating 2 bars from the recording of Ory’s tune for his own.

    What happens?

    In this actual case, absolutely nothing. Everyone knows that the band’s improvs are considered to be part of the arrangement of the song and nobody cares.

    But under Australian law, who knows? Neither Louis nor Ory have been dead 70 years yet, and who knows who owns the copyright anyway?

  33. It would seem that this judge believes it’s not ok for a pop band to use a tiny, barely unrecognisable sample of an Australian folk song in one of their numbers, but it is ok for a major airline to use the actual words from that song in a major advertising campaign — strange days.

  34. I presume the airline paid a royalty for using the actual words, since that was clearly using the song, not merely referencing it.

    Unfortunately, this was the latter, and – as chinda, SB and Evan point out – the decision is a real problem for musicians.

  35. Hello Jeremy,

    From the way I read the statements, I get the impression that Qantas didn’t pay any royalties..

    “The judge also ruled that a Qantas advertisement which used a small similar section of the riff was not in breach of copyright laws. EMI said it was pleased with this decision but Mr Simpson was not ruling out further legal action.

    “In the Qantas ad there was a smaller part of the song and so the judge felt that wasn’t enough to qualify as an infringement of copyright. But we’ll be giving that some more thought,” he said”

    http://www.abc.net.au/news/stories/2010/02/04/2809848.htm

  36. So they didn’t use the words, just a smaller section of the song?

  37. From what I’ve been able to find out the choir sang “kookaburra sits in the old gum tree” at one stage during the ad.

    I’ve been trying to find a link with the actual ad, but no luck so far….

  38. Pingback: Huge unjustifiable rebates paid to the people who report the news « An Onymous Lefty

  39. Evan.

    Your point is valid to a certain extent.
    However, it seems that you are confusing performance, recording and copyrighting.

    When Louis and the lads are performing a live gig, they can pretty much do whatever they want.
    Most bands do.

    Once they record that piece and claim copyright over the words and music, and earn income from it, without acknowledging Kid Orly, they’ve broken the law.

    As I understand it, that’s where Colin Hay came unstuck. He claimed that the words and music were his when, clearly, they weren’t. Thus, “copyright infringement”.

    What I find reprehensible about this case is that Larrikin Music are no more than half a notch up the slime ladder from cybersquatters.
    They probably paid bugger all for the copyright and are now cashing in bigtime at the expense of one of this country’s iconic artists.

    Cheers.

  40. “they’ve broken the law.”

    They’ve possibly infringed a copyright, you mean.

    “He claimed that the words and music were his when, clearly, they weren’t. “

    Yes they were, just as much as when any author quotes another author in a much longer work. That should be fair use.

  41. Except that Kid Ory was the trombone player in the band that made both the recordings I’m referring to 😀 Maybe I didn’t explain myself properly, but in a 6 song session, they’d often record one song by each of the 5 band members.

    I was posing the question of who owns the improvisations? The nominated “songwriter” (who probably only wrote the chord changes and basic outline) or the person playing them? Are they part of the arrangement or part of the song?

    The real pest for the artists in those days (mid-20s) was that the record companies generally just paid them a set fee for each song released, once, to divide up amongst the whole band, no matter how many copies they sold. Forget royalties…

    Although maybe I shouldn’t be asking too many questions. Those copyrights are still alive and kicking and will be for another 40 years or so.

  42. Men At Work should pay. I totally stopped buying Margaret Sinclair CDs when Downunder came out.

  43. Zippy the Pinhead

    The greed involved in this is sickening, from the ABC report:

    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.

    “I mean, anything from what we’ve claimed, which is between 40 and 60 per cent, and what they suggest, which is considerably less.”

    60 effin percent !?!? The chutzpah is astonishing – surely the percent would be the percent of notes ‘stolen’ against total notes of the song … ie less than 1%

    For flips sake – retrospective too …
    this whole thing boils blood.

  44. “Men At Work should pay. I totally stopped buying Margaret Sinclair CDs when Downunder came out.”

    I lol’d.

  45. Fred Phillips

    “They’ve possibly infringed a copyright, you mean.”

    Contrary to the Copyright Act, which prohibits this. Hence, “they’ve broken the law”.

    “Yes they were, just as much as when any author quotes another author in a much longer work. That should be fair use.”

    Colin Hay acknowledged that the notes in the flute solo were the same as those in the Kookaburra song. He didn’t attribute them to their author. So, no, they weren’t his to claim as his own. When authors quote one another, they have to give appropriate acknowledgment.

  46. Fred, intellectual property is theft. If society is going to create monopoly rights it must do so by reference to the benefits to be derived by its citizens. Surely it can do better than to grant a windfall to a greedy IP troll company that has had nought to do with the creation of the song. They royalties should go the RSPCA’s Kookaburra Preservation Fund given that the original was a rip-off of the kookaburra’s call.

  47. Having actually had the chance to read up on all this, I’m still maintaining my position where I’m siding with the holder of the copyright.

  48. Don’t see how. Two bars are a quote, a reference, not piracy.

  49. It’s the context of it.

    Or, “the vibe”.

  50. Totally agree with this, Jeremy. A ridiculous case which brings copyright law into disrepute… A lot of music builds on past music. (And yaddah yaddah for literature, art, what have you).

    Part of the reason why Australian Copyright laws are so strict these days is because of the Australia-US Free Trade Agreement (‘AUSFTA’). AUSFTA provides that we must accord “national treatment” to violation of American intellectual property rights – that is, we must treat violations of US intellectual property rights in the same manner as we would treat our own (Articles 17.1.6, 17.1.7 and 17.1.8 of AUSFTA). In addition, Australia had to enact detailed amendments to its intellectual property laws to bring them up to the standard required by the US.

    The thing that always strikes me as very ironic about this is that in the 18th and 19th century, the US were the most incredible copyright pirates you ever saw. Heh.

    There has to be a middle way between protecting someone’s interests in their works and allowing others to build on what has gone before. At the moment I don’t think copyright law is achieving that balance correctly.

  51. “In addition, Australia had to enact detailed amendments to its intellectual property laws to bring them up to the standard required by the US.”

    I remember vigorously opposing this at the time.

    It was such a one-sided agreement, so far as IP is concerned.

  52. Pingback: Anything more than “nothing and get the hell out of my court” would have been ridiculous « An Onymous Lefty

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  55. norm lurie you fuckwit

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