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Copyright case - songwriters to lose $MILLIONS!

An Australian court has recently decided that a song that is almost a national anthem rips off another song written 49 years previously. And someone is going to have to pay...

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Go on - sing a few bars of the Australian national anthem. No, not Waltzing Matilda, that other one.

No, not Advance Australia Fair. That's the official national anthem, chosen by the Australian people in 1977.

Without doubt however, Australia's real national anthem, the one that the rest of the world knows, is Down Under by the band Men At Work.

Down Under was released as long ago as 1983, but it has only recently emerged that it is a rip-off of another song, Kookaburra Sits In The Old Gum Tree, written by Marion Sinclair in 1934.

Thanks to an earlier decision in court, the copyright in Kookaburra is now owned by Larrikin Music. Sinclair died in 1988.

It does seem a bit odd that Down Under was released forty-nine years after Kookaburra was written and it was twenty-six years before Larrikin Music noticed that there is something of a similarity between the two songs!

You want to hear it, so here goes. Firstly Down Under (listen for the flute phrase around the 53 second mark)...

(Can't see videos?)

And now Kookaburra...

I'll leave it to you to judge a) whether there is indeed a similarity, and b) whether Down Under is a complete rip off, or whether it merely references a tiny piece of pre-existing Aussie culture.

But since the court has decided that the copyright in Kookaburra has been infringed, then legally it has been infringed.

And that means the infringer has to pay.

The amount that will have to be paid has yet to be determined, but Larrikin Music is, apparently, expecting 40-60% of the earnings of Down Under.

Now that is a hell of a lot of money, potentially running into millions of Aussie dollars.

To be fair, the writers of Down Under, who kicked off the process of generating those millions of dollars, have given the world a lot of pleasure. They have generated business for many, many people, and they are entitled to their share of the rewards.

But surely by now most of their money will have been spent? How are the writers going to be able to pay back the 40-60% Larrikin Music expects?

But there's a further problem that affects any songwriter...

Now that it has been upheld in court that such an infinitesimally tiny fragment of a melody constitutes copyright infringement, you can be sure that anyone in the future who makes any money from a song will get their arse sued off.

'Arse' is UK English for 'Ass', by the way.

And what about the ongoing development of automated software that scans media of all kinds for infringements? That little musical phrase you put in the middle eight of your song that features on your MySpace page will be found to exist in someone else's earlier work. You'll get sued, the writer of the pre-existing work is probably dead, their publishers rake in the profit and the lawyers celebrate with another bottle of vintage champagne.

If you support the idea that creativity should be rewarded, then probably you will feel that Marion Sinclair does deserve a share of the proceeds of Down Under.

Well she won't get any because she is dead. But since copyright extends beyond death, then while she was alive she had an asset that she could sell, which Larrikin Music now owns.

But surely there needs to be a sense of proportion. 40-60% is not proportionate. Down Under would have been a successful song with a different flute melody.

I would put a just reward at around 5% or thereabouts. And if I were a judge I would cancel it anyway because of the length of time it took for anyone to notice.

How do you feel about the whole issue? What percentage would be a fair settlement?

Discussion below...

Publication date Monday February 15, 2010

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Discussion on this article's topic...

 

Jeremy, Winnipeg, Canada
One sad thing is that there are people on recordproducer.com saying that they cannot hear the similarity in the flute part. The quote happens three times, half of it at :13, all of it at :53, and again at 1:55. It is ten notes long, exact same rhythm, melody, everything. If you cannot hear that similarity once it is pointed out to you, you have no business producing records, you need to have enough musical fluency to advise your clients about music they might be ripping off. It is a recurring HOOK in this song, and was clearly done intentionally since it is a song about Australia. I fully believe that some royalties are deserved, but 40% is ridiculous. The 5% that was given them is even a little high, considering that they only used half of the original song, and only as a subtle quote in one instrument. The bulk of the royalties earned by this song were earned by the vocal melody, upbeat arrangement, and lyrics.

Tuesday July 06, 2010

Rob, New York, USA
I don't know people, sure sounds like the same 10 notes to me, in the exact same rhythm. Certainly meets the current litmus test for infringement in the USA. And that flute riff is one of the signature hooks of the song. If Marion Sinclair wrote it and published it, she was entitled to something and her heirs got short changed on the deal. Dont' blame Larkin - blame the original producer who didn't recognize that the melody was Kookabura - a song distinctly associated with Australia and sung by every Aussie child. If it wasn't for copyright law, writers would never get paid and their original works would be freely stolen with impunity. Copyright is there to protect YOU, the writer. We NEED strong copyright law. If the material isn't original, then the originator has authorship - even if copying is unintentional. And that signature portion of the flute riff is not original. Granted, the rest of the song is very original and does not hinged on that melody. The naive producer on the session should have guided the musician to alter that riff and infer Kookabura instead of play it verbatim. It is one of the responsibilities of a producer - make sure the material is original and if not get clearance. The legal fees alone could chew up a significant portion of the proceeds from publication. Respect and protect original art don't copy it.

Saturday May 22, 2010

John, Tidewater, U.s.a.
I am filing a copyright on the phrase "Made in China" I'm going to be rich!!!!!!!!!

Tuesday May 18, 2010

Bill Bromfield, Stephens Cuty, Va
I am filing a copyright on the words "copyright infringement."

Friday April 16, 2010

Adam, Fort Worth, USA
The song is about a country, and references icons from that country, I don't understand what the problem is...for me, it's like Family Guy referencing other popular iconic culture in their sketches...? Can art no longer be playful...does each piece of art need to be its own universe?

Monday March 01, 2010

Larance, Floral City, U.s.a.
I thought Kookaburras only swept down and stole bacon off the barbie... playing a flute, too? I say let the suicidal lawyers fry on the barbie so a Kookaburra can sweep down on their remains. Isn't that what Shakespeare really meant?

Saturday February 27, 2010

Alix Azoff, Utopia, Canada
What’s next a copy write on the Arabic scale?
There may be some similarities but to call it a direct rip off??? Get real co co………

Saturday February 27, 2010

Stewart, Montreal, Canada
When I read crap like this I know that it's time for the revolution. Off with their heads!!. I have been wondering how much the judges get in kick backs for rendering these absurd jugements.

Wednesday February 24, 2010

Daniel Sterling Morrison, Omaha Arkansas, U.s.a.
I have to listen pretty hard to find any comparison. If its not so obvious to the listening public, then there's no real concern for infringement. I think Larrikin is just digging up dirt to find excuse to pay themselves more money. Let the "Men at Work" who worked their great sound get paid without such greedy financial infringement on these great artists .

Monday February 22, 2010

Mike O'neill, N. Wildwood, Nj, U. S. A.
No more 1-4-5 patterns for me. Is there now going to be a lawsuit between "La Bamba" and "Twist and Shout"? or Pete townshend vs the Fat Albert band, and where does that leave the whole hip hop industry and since both of these songs were published by the court do they now owe royalties, and to whom? I say "Kill all lawyers", whoops I think I've heard that before. I better quit while I'm ahead-crap-there I go again-dammit

Sunday February 21, 2010

Josef Horhay, Birsbane, Australia
In the Video Clip, He sits on a tree playing the flute riff which sounds very similar to 'Kookaburra Sits on the Old gum tree." The words go "Kookaburra sit's on the old Gum Tree...". LOL. I think Men at work knew it sounded similar, but didn't intentionally do it to "plagiriaze". And substituting Kookaburra's in a live performance was in hind sight a very bad move which gave Larirkin more AMMO.

Saturday February 20, 2010

Ben, Chandler, Az, USA
Further thoughts on this suggest that the criteria for deciding infringement is all wrong. Given that we are locked into the present musical scale, maybe infringement should only be considered if the notes are used in exactly the rythmic and phrasing pattern as the original.., otherwise they are just notes, like letters of the alphabet, we use them again and again to form the words we communicate with daily. MAW did not copy exactly, or easily recognizably, the "Kookabura" thingy. What if we patented, or copywrited, words?.., litigation would be over the top.

We can copywrite a "slogan", used by a business, but not the words within it, and infringement here would come from exact duplicate use by another business or individual.., why is it not the same in Music.

Thursday February 18, 2010

Henry Ward, San Francisco, USA
This is total rubbish, the law suit should be rejected and made a national scandal for it will set a misguided presentment of unprecedented lunacy and greed! I'm a music publisher and respect the artist rights, however this claim is nonsensical and must be over turned, it is blatantly wrong! It is an instrumental lead break on the flute, not the melody line of the song, hello? Get a judge who truly understands music!

Wednesday February 17, 2010

Michael, Anaheim, Ca, USA
There are 12 notes in the chromatic scale, and similar melodic components in all music ... because there are only 12 notes! Similarity and plargiarism are 2 different things. And what similarity between the two constituted copywright infringment anyway? It's like comparing "let it be" and "sweet child 'o mine" and saying its copywright because they're in the same key or share a three note sequence that is the same.

Two much Fosters for them upsidedown buggers in Austrailia's courts.

Tuesday February 16, 2010

Jaxxm, Randburg, South Africa
I can play them quit a few songs with the same notes. Are they going to sue their writers as well.

Monday February 15, 2010

David Bradley, Lawrence, Ma, USA
Gee, have the Australian courts never heard of a statute of limitations? This happened long enough ago that there should be no legal grounds for recovery.

For that matter, something similar to squatters rights should have kicked in where the copyright holder allowed it to go unpunished for such a long time that they have given a defacto license for the use of the melody without compensation.

This should definitely be appealed!

Monday February 15, 2010

Victoria Fuller, Chicago, USA
So many recorded jazz songs use little riffs of other songs within their own songs as a kind of a song recognitions teaser. It's common practice. People recognize the other song within a song, and know that it is attributed, because it is such a well known song, but they still focus on the main song and it's melody and know the difference. I think that it's such a tragedy that Larrikin would nit pick in this way. Kookaburra is a national anthem, so to speak, and people know that the use of something that is slightly similar was a tip of the hat to that anthem that represents Australia, and song "Down Under" was about Australia, so using the little similar snippet was a tribute to the author of the anthem, but not a rip off. It was a tribute, and should be seen as such, just like jazz musicians pay tribute to other popular songs by including small riffs from them in their own material. People recognize that and know that it is a tribute, not a rip off.

Thursday February 11, 2010

Ken Randall, Wickepin, Australia
My thought of the day... I savour the day Lariken gets caught with a song pinch... I am sure there is a lot of people out there willing to find a similarity. That will be the day the kookabough's can truly laugh in their tree and play their own flutes. Hold on silly I know but shouldnt the Kookabough have some right to the song..Was the kookabough ever asked if they wanted to be in the song I guess not..Lets get the judge to decide on that....No I don't think the judge got paid off he or she was just missimformed and knows nothing about the subject. Down under did make the mistake of singing the actual words in the last few years that went against them heaps...Larikan have said it was a win for the little guy... However we all pack ourselves to write a song now.. Especialy if it becomes a hit....

Thursday February 11, 2010

Bruce Cole, Eugene, United States
I don't hear any similarity between the two songs at all. Whoever heard a likeness must be in the "Twilight Zone"!

Wednesday February 10, 2010

Simon Scardanelli, Brighton, UK
In which case John Cage's estate should sue for the silence between CD tracks.....

Of course this judgement is a joke, all music is referential.

Wednesday February 10, 2010

Bob, Chicago, USA
Inspiration is a bitch. I guess, according to the company's logic, DiVinci should be paying the estate of Mona Lisa, eh? What inspired "Kookaburra Sits in the Old Gum Tree" to be written? Maybe we should give the money to Kookaburras. WTF! All the heads of greedy corporations need the money to support their very important $500/day blow habits. I wonder how much Larriken Music paid the court to rule in their favor? Hmmmmm?

Wednesday February 10, 2010

Jayden, Kingaroy, Australia
What a Joke!! The guys sitting in a tree, whistling a song, about a bird sitting in a tree! Surely they can see that it's an artistic interpretation of an iconic Australian song which represents living in a "land down under". Larrikin should be promoting the song.

Tuesday February 09, 2010

Phil, London, UK
To every cow it's calf to every book it's author...simple...BE Original you have nothing to fear....DON'T STEAL...or you will be caught eventually...

Tuesday February 09, 2010

David, Coeur D'alene, United States
Joseph, I totally respect your comments. However, does that mean that you agree with the ruling or not and did you listen to the two audio/video tracks?

Tuesday February 09, 2010

Joseph W Lattisaw, Kensington, USA
I am a songwriter too and would be very disappointed if someone were to steel any portion(s) of my song. It doesn't matter how small the part. A songwriter should be fully compensated for his works. If you infringe on someone's music, melody, or lyrics they should be fully compensated.

Tuesday February 09, 2010

Mike Reichert, East Moriches, Ny, USA
Is this the day the music died? Simon Shackleton and Robert Emmett made some great points. Good discussion all around, actually.

Tuesday February 09, 2010

Les, USA
There is, at least, in the US, the concept of latches. You can't wait 40+ years and then sue somebody. There are such things as statutes of limitations. !!!

Tuesday February 09, 2010

Thebigbamboom, London, UK
So, Larrikin expects 40-60% of the royalties for a likeness comprising just two bars of melody? What a joke - and what a cloth-eared and ill-informed judge. This has got to be overturned in any rational appeal system, otherwise all we writers are screwed!

Tuesday February 09, 2010

Ken Randall, Wickepin, Australia
Thanks Peter for those email https turns out it was the right ones and it was easy. Be careful dont be slanderous or anything as guess what you will be in court same judge maybe..I just asked for all the products listed for larrikan not because I wanted to buy them because I didnt

Tuesday February 09, 2010

Ricardo, Norman, Us
Well, are Australians one judgement away of becoming researchers on millions of songs, have them memorized in order to try to compose without using note progressions already used, instead of being composers?
They might as well become a microtonalists (is this even a word?), just make sure you don't rip off Alois Haba.
Too much greediness, Down under is a great song and does not sound like this kookaburra at all, I agree with all of the above, it is ABSURD!

Tuesday February 09, 2010

Mark Lyon, Oklahoma City, USA
Ever since the first caveman started beating a rhythm on a log, we have been modifying music. No music that I have ever heard is "truly original" There are indeed new methods, new versions of old melodies, etc. But the fact is, even the most creatively brilliant songwriters are going to use bits melodies, chord changes, or rhythm patterns that have been used before. That's not to say it's okay to go and blatantly steal something and call it your own. Obviously, the Men at Work song was paying homage to the older song. Wasn't it John Lennon who said"if you are going to steal, steal from the best?" The Beatles music is full of little bits from previous music. But it is only bits, not entire songs. Larrikin music is just greedy bastards trying to make a buck the way lawyers do. Music is different than the music business. Music =Good. Music Business= bad

Tuesday February 09, 2010

Carter, Bath, Maine, Us
This is a clear case of corporate sociopathy. Do the people running Larrikin (which is, I assume, in the music business) realize that in attacking artists they are putting their foot down on the wellspring of all their other profits? Clearly not -- short term bottom line is all they seem to care about, and let the rest of the world be damned.

Tuesday February 09, 2010

Shelter Studios, Schaffhausen, Switzerland
Apart from the most tenuous of similarities between these songs,
there is a wider and by far
more serious issue of the legal
system that was used to sustain
a ruling in favour of one of them.

There are more significant similarities
between, they both have guitars in them,
they both feature human voices in them
and both are mildly melodic etc.

Our world appears to have gone nuts and
there is nowhere left to get away from
this madness.

Tuesday February 09, 2010

Doug , Usa, USA
No similarity. Maybe slightly but koko-whatever is slower. It does not sound like the flute part. Men at work should counter sue.

Tuesday February 09, 2010

Kenyon Bowe, Nassau, Bahamas
This is an example of a Judge who can be bought by big money corporations. It is obvious that this case is hog-wash and the ruling was made so that he could be paid be Larrikin. I agree, lets boycott Larrikin products

Monday February 08, 2010

Simon Shackleton, Manchester, UK
Larrikin have acted atrociously. What an example of greedy, corporate self-interest! This ruling represents a real body blow for the world music community.

What the hell is going on when I may have to think carefully before writing a song containing a circle of fifths or a relative minor turnaround? God help jazz composers! Virtually every jazz tune ever written uses the ii-V-I progression. Perhaps some fat corporate suits will soon own the right to I-IV-V and the blues scale!

There is a reason these musical devices are so ubiquitous in western popular music: They are compositional building blocks, tools of the trade, and musicians everywhere have the right to use them at will, along with the 12 notes of the western scale. Years and years of precedent says so!

So, up yours Larrikin! And Lars, you can shove your minor 2nd up your arse! Its ours as well!

Monday February 08, 2010

Sebastian Fritzsche, Germany
Though the embedded Men At Work video is not available in my country, I am acquainted with the song (rather than with the flute tune). As far as I have understood a composition is not so much determined by a flute tune appearing at one point in a song, but rather by a combination of chords and a hook - be it instrumental or vocal - and I have even heard that one cannot even get a copyright on a bassline. Besides that I could not discover any similarities between the Men At Work song and the Kookaburra. The only way to prevent the depicted future scenario would be to completely do away with copyright. Other than for a complete song - including chords, hook, and lyrics - I rather doubt that anyone should have an actual 'right' to 'own' a simple tune.

Monday February 08, 2010

Robert Emmett, Philadelphia, USA
MONTREAL — Metallica are taking legal action against independant Canadian rock band Unfaith over what they feel is unsanctioned usage of two chords the band has been using since 1982 : E and F.

"People are going to get on our case again for this, but try to see it from our point of view just once," stated Metallica's Lars Ulrich. "We're not saying we own those two chords, individually - that would be ridiculous. We're just saying that in that specific order, people have grown to associate E, F with our music."

Rumour also has it that Bill Gates is about to copyright ones and twos and the Bic Corporation are copyrighting fire.

I am also hereby serving notice that I will shortly be submitting my copyright application for noise (I have been making it since day one of my life) and will quietly but vigorously pursue any and all infringements.

Monday February 08, 2010

Terence , Newcastle, Australia
Well I for one, am now going to boycott any product that has anything to do with Larrikan Music. If enough people do this, Larrikan might realise that the loss of profits from reduced sales would far exceed any payout from the composers of Down Under.....or is it possible that Larrikan themselves are so financially broke that they need something like this to stay afloat....

Monday February 08, 2010

Peter, Melbourne, Australia
Larrikin Music is a subsidiary of Music Sales International. We (the music community) should let them know we are appalled by their action, and will protest by boycotting their company - we will not buy their products (e.g., sheet music), and composers will not approach them with new music. Perhaps if they see how their actions have made them a pariah in the music community they will figure out it will cost them money, and perhaps they will not follow-up on the ruling. I strongly urge you all to take 5 minutes to email Music Sales International to express your dismay, and that you are boycotting the company. Here are some appropriate links to email Music Sales: (for Australia) http://www.musicsales.com/doc/78/desktopdefault.aspx?tabid=78; (for UK) http://www.musicsales.com/doc/168/index.htm; (for USA) http://www.musicsales.com/doc/135/index.htm.

Monday February 08, 2010

Peter, Melbourne, Australia
I think this case highlights a number of issues. One being that the current copyright laws are woefully inadequate, erroneous, irrelevant and dangerous when it comes to music. The second is that Larrikin Music has exposed itself to be a typically greedy rapacious litigious devious corporate animal, rather than a true supporter of creative art as a true music publisher should be.

Monday February 08, 2010

Peter, Melbourne, Australia
A number of people have commented on the basis to the legal decision. Here is a link to the full transcript, it makes very interesting reading if you want to learn more about this case, and music copyright law in general: http://www.austlii.edu.au/au/cases/cth/FCA/2010/29.html

Monday February 08, 2010

Chy, Worksop, England
Try this:the song "Yes we have no bananas" only has the 'bananas' bit as an original composition. The 'yes we have no' is the opening "Hallelujah" from Handel's Hallelujah chorus, and and the 'we have no bananas today' uses the tune of '...Oh bring back my Bobnnie to me.'from the ending of "My Bonnie Lies Over The Ocean".

So the song should go: "Hallelujah, bananas, Oh bring back my Bonnie to me."

If this ruling is to stand then there can be no more music composed ever again, I haven't done the calculation but there is a finite combination of notes which can be called 'original' and, if we start with Guido D'Arezzo and 11th century plainsong, we must have used up all the musical note combinations by now.

Forget the LAW, let's replace it with SANITY and JUSTICE - now that's a revolutionary idea!

Monday February 08, 2010

Miggy, Miami, Us
How much is that judge getting under the table...?

Monday February 08, 2010

William, Bridlington, Englandcannot
Cannot hear any similarities with the two songs.Larrikin music are trying to rip off the "down under" writers and make money out of their success.they should find something better to do!!!

Monday February 08, 2010

Rob, Dublin, Ireland
I have writen many songs over a span of 23 yrs, some of which have been lifted or copied by others (mostly known to me). I have never considered taking them to task for financial reasons, the fear of ridicule and the amount of work involved. If this case lead to, lets say, AHA suing U2 or Gene Pitney's publishers suing Radio Head, then I might find the bottle to recoup my reward. PS Always loved Men At Work

Monday February 08, 2010

David, Coeur D'alene, United States
Unbelievable, this is just another way that the SUITS on the corporate side of the music business are ruining it for artists. These people if you can call them that do not have a drop of creative blood in their body and the only way that they survive is to suck this life giving source out of those who do. I believe that species of humans are called Vampires.
This needs to be fought at all levels. Appealed to a higher court, whatever it takes. This is undeniably unjust. At the very least someone should take the judge out back in the down under and give him a good righteous whipping and find out who paid him off. If there is any place in the world where this can occur, it is Australia. Come on Australia Rise Up!

Monday February 08, 2010

Michael Gabriele, Coventry, USA
I sent an email of protest to Larrikin Music Publishing and I urge other songwriters to do the same.

Monday February 08, 2010

Ben, Chandler, Az
Well it's clear that we need some new notes in the musical scales, because using the old ones over and over is beginningt to be troublesome. it also allows "Jerks" like Larrikin Music to undeservedly take advantage of an innocent coincidence. Personally I heard nothing similar at all between the two.., only a really nice turn of phrase at the end of a flute diddy, posssibly remeniscent of other Old Aussie diddies, but not even a copy of any of them. AFter all, it's not like MAW did a cover of "Kookaburra" where proper clearance would have been the order of the day. I certainly hope Australia law has a decent appeal system that Men at Work can take advantage of, and a lawer willing to work pro-bono on their behalf just because it's the right thing to do.

Monday February 08, 2010

Maurice Calloway, Seattle, USA
Either im totally tone deaf or there is absolutely no similarity at all between the flute and the guitar melody on Kukabaroo. Someone please tell me Im not tone deaf.

Monday February 08, 2010

Aussis Battler, Sydney, Australia
Larrikin Music... Dont deserve to have the word "Music" in their name... indeed... maybe they should be sued for it..somehow!?!/?`
It is indeed a bad day for all musicians of any kind, any genre and any era when money grabbing pricks rob the genuinely talented of their hard earned money. As an Australian, I am even more sickened by this. F#*k You Larrikin Music! You deserve nothing!...In the name of musos around the world, I hope the vicious circle comes round your way soon!

Monday February 08, 2010

John D, Wilkes Barre, USA
If I paint a picture of a house and copywrite it, does that mean nobody else can sell their own painting of a house unless I get some kind of royality off of their painting?

Monday February 08, 2010

Kevin, Baltimore, USA
This is ridculous. The publisher of "Kukbor" or whatever the song is called should be happy to have a band like Men At Work pay homage to it, that is even if they are. So what happens to the producer who produced the song and record label that allowed the song to be recorded and the actual publisher of "Down Under" (Are they responsible for anything in a case like this.) I would think they should be under scrutiny as well, instead of the writer only. This makes me mad. As a songwriter myself and one who works with other songwriters producing their demos, "TrueMediaProductions.com" I get songs all the time that sound similar to other songs and think nothing of it. The reason is because their songs just reminds me of another song but actually doesn't sound like it, so where do you draw the line. This is ridulous as I stated before.

Monday February 08, 2010

Rene Anton, L.a., U.s.

I question the intellect of judge and jury and therefore lawyers? If they have phd's in music , if the jury can read or write music , Does the jury know what a bar, clef , meter is. Since when does a song that old get compared and if so was it public domain. If this is the case then every song ever written that use the keys in music would be copied since classical music led to all styles of music!

I would say in the future that time of creation and influence shoud be considered and i feel bad for men at work , when a judgement is given on a base of a song that old.

I write songs as well and if tech. hasn't already gotten away with stolen samples then one should fight an appeal otherwise all songwriters are at risk of such injustice !

Monday February 08, 2010

Sige Emerson, Austin, Texas, USA
I don't hear anything to compair. The Keys not being the same, change the mode, and lets note forget tempo, meter, and other such evaluations. A song is the total composition, the total composition made the money, not a part of the song even if it was a rip which I still don't hear. Politics as usual.

Monday February 08, 2010

James Mckedree, Pascagoula Ms, Us
If M.A.W.'s flute solo is plaegerism, then so is Eric Claptons's "Blue moon" intro to his Sunshine of your love solo!!!

Monday February 08, 2010

Gabriel, Asunción, Paraguay
I ever leanrt that a piece of music can be regarded as a plagiarism provides it has, at least, 8 bars identically equal. What is the international law about, actually? As I understood, in this case, it was not beyond the 4 bars…
I ask to all you, that are more nearly involved in the music industry, if you shouldn´t call an international meeting with all the persons and institutions of the music around the world, to set up some basic rules which could give some parameters as how must be deal cases like this. It is absolutely necessary to support and protect those, every day, scarcer guy; the creative, composers, songwriters. This kind of happening discourage fully the creativeness; exposed to the shark of lawyer and all those mafia that only live to steal the rest of the world.

Monday February 08, 2010

M, George Town, Oz
I made some claims before, see for your self...
http://www.youtube.com/watch?v=hkX7Q2J7k48
http://www.youtube.com/watch?v=g71YJft0dOQ


Monday February 08, 2010

Michael Gabriele, Coventry, USA
I presume every songwriter on earth has been listening to music his/her entire life. No doubt, thousands of melodies, chord progressions, even lyrics have been digested by the mind, stored into memory, and stirred around in the unconscious. When we write music, we sit with our instrument (in most cases) and try to see what comes, and the unconscious certainly contributes to what comes. Even Paul McCartney wondered if his melody for "Yesterday" was something he'd heard in the past. The point is that, unless a writer is deliberately and intentionally committing plagarism, all music emerges from some kind of mysterious "place," and the unconscious (and whatever it contains) is a great part of that. I think the judge's ruling is totally uninformed, and Larrikin is obviously out to make a quick buck, while destroying a fine band's reputation. The whole case is bs.

Monday February 08, 2010

Sonicblade, Buffalo
It's only australian law. It has no impact on us in the states. It brings up the prepostoressnes (??) of owning a song. What, you own a sequence of notes? Which ones the 12 that have been used since 1500? That flute solo is in a whole different octave. Copyright has been used to be the defining positive force of capitalism and development since 1900. I think it exists purely to keep capital in the hands of them that had it in the first place. Were there damages? no. there was no lost revenue, etc to kookoobura, inc.

Look, if you are a musician, just let it out. You will feel better, and maybe score some chicks. Otherwise, the current "music" business model is dead. All that's left is the scavengers picking over the carrion. Don't quit your day job and go make some music.

Monday February 08, 2010

M, George Town, Oz
Yep, this is crap, there will be a retrial, no one would stand for this crap, I write songs for a living and I can not hear the similarity.Jesus if your going to sue these guys for that Led Zep would be taken to the cleaners,have you heard the original version of black mountain side?, jimmy did not write it, he lifted it, take a look at you tube.Or what about the start to stair way to heaven by a band called spirit who toured with Led Zep before the song was written.

Monday February 08, 2010

Rob Williams, Nottingham, UK
There's no doubt in my mind that it's the same melody. The last phrase of the flute part is the same as the first line of the Kookaburra song. I think it's deliberate, and I think it's meant as an homage to the original, given the affection Aussies have for the song. To sue for plagiarism is completely wrong though, as the songs are not similar in any other way and rather than ripping off, I'm sure the band were nodding respectfully in the direction of the original. Fact is, it's getting pretty much impossible to write a song with sequences of notes which have never been used before. There will need to be a distinction between accidental or coincidental similarily and deliberate plagiarism in the future. Sadly, this falls in the latter territory in my opinion. Nevertheless the case is flawed and pathetic, and should be dropped as an example of wanton profiteering.

Monday February 08, 2010

Steve Ward, White Plains, Ny, USA
There's no question that there is a similarity--it's a quote. The flute lick is in there BECAUSE it is identifiably "Australian," both to Australians and to the rest of the world. But it is just a quote. The song would have worked just fine with a different flute figure, but it's a better production with Kookaburra because its "Australain-ness" adds to the context of the overall song.

Listen to any good Jazz solo and you will hear snippets (quotes) from other songs' melodies. It's a common musical practice.

In this case, the flute riff is an integral part of the arrangement, but not of the composition. The song's melody is not based on "Kookaburra" in any way. At best, the record company might be liable for a portion of the mechanical royalties. Since the record is a work-for-hire, the artist should have little liability. The songwriters should not be liable at all.

The length of time to bring the suit is problematic as well. Where was the outrage in the 80s?

Monday February 08, 2010

Jon, Andover Ma, USA
This is ABSURD! how many two bar song quotes exist in recorded jazz solos? Gonna sue all of those?

really STUPID! this will never hold up.

Monday February 08, 2010

Rob Holsman, Nottingham, UK
I'd side with Hays 100% on this. I'm astonished that the Australian Courts didn't boot this out on its ear, since it sets an almost unacceptable precedent for composers. I have listened to both clips and like most of the other posters I can't hear any real similarity! There's a difference between blatantly ripping off a melody and including an ad-lib that happens (in some ears) to show similarities to another melody, despite being played on a different instrument, to a different rhythm and for a different musical purpose!

Its one of those cases that has been won - at the moment - on a stupid technicality, and where a degree of common sense should have prevailed> Hopefully, when it comes to assessment of damages, the courts will see that 40/60 is utterly unreasonable. Consider this - Publishers are in the business of collecting monies ON BEHALF of their clients, not exploiting similarities tot he letter of the law to line their own pocket. The music had been in the public domain for 20 years before Larrikin acquired the rights. You would have assumed that they should be aware of its melodic content if they had bought the rights, so that they would be able to identify the piece of music if used without permission. You'd have thought therefore that they might have spotted its usage on a track that MADE NUMBER ONE!!! at some point in the ensuing 26 years, rather than picking up on it only when pointed out on a quiz show! Had the composer been alive, and felt like contesting the issue, she should have fired her publisher on that basis alone, leaving Larrikin to collect no money on the grounds of professional negligence.

Where would this all stop? One could argue that the opening guitar riff to Layla was the tracks most identifiable feature, but I dread to think what would happen if Mr Clapton sued every band who's guitarist used that lick as part of a solo.

The moot points has to be that since the original composer took 2 decades to copyright the track, and considering the nature of its original composition, its unlikely that the original composer ever intended to expoit it for profit. Since it has become a part of Australian culture, being referenced by another song about Australia makes sense, and should really be deemed as a tribute not plagary. Under those rules, Jimi Hedrix would have had his arse sued off for including Star Spangled Banner at Woodstock!

Monday February 08, 2010

Wyamarus, Rochester, USA
Anybody who believes in so-called 'intellectual property rights' has not thought the implications through clearly. The very concept of 'intellectual property' didn't exist until the turn of the 20th. Century when the mass publishers of sheet music devised a way to ensure their monopolies on the dissemination of printed popular music. Plagiarism, where a work is taken in it's entirety and authorship is fraudulently claimed is one thing; derivative works are something entirely different.
The last 15,000 years of Human Civilization would not have occurred if there were constraints on extending the common cultural legacies of language, science,and art. IP laws not only force any new development to 'reinvent the wheel', but may "preclude the use of any rotating geometric form to reduce friction" -just to carry this to it's logical absurdity. The laws pertaining to plagiarism, theft,and fraud are relatively clear, and the underlying principles are relatively straightforward, easily understood, and documented. IP law is characterized by capricious, arbitrary, and often questionable judgments that reflect the depth of the pockets and political connections of the litigants. The only true 'intellectual property' is the thoughts that one keeps privately to oneself. The act of disclosure or performance puts the meme of the author/originator into the public consciousness,and derivative works should follow (if the original idea has any merit). This is how culture works. Culture does not reside in an individual, it is a collective process, and any short-sighted attempt to circumvent that, has destructive consequences for us all.

Monday February 08, 2010

Walter Whitney, Bourbon, USA
When one looks ahead to the not too distant future, we can envision the day when I will be nearly impossible to write any song that has not been written before. If we are just looking at a string of consecutive notes that are the same notes already copywrited.There has to be other criteria used to make the judgement call. Sure "My Sweet Lord" sure does sound a lot like "He's So Fine" But I hadn't noticed until someone brought it to my attention. I would have been a shame if George's song was never heard because someone caught it before it was released and we never had the chance to enjoy it. I'm afraid if this legal mumbo-jumbo goes to far great music will stopped in it's tracks. Gee, I hope I didn't just write something here that was copywrited in some published article somewhere, If so they can talk to my lawyer! May sanity rule! oh, 5% is plenty B.T.W.

Monday February 08, 2010

Andy Martin, Berlin, Gerrmany
If you compare many rock and roll songs that follow on from Rock Around The Clock, you can hear similarities. That song created in itself a whole genre of music to follow. Certain musical styles set limits and borders and songwriters know this. There are underlying patterns in songs and companies such as uPlaya and Platinum Blue have huge databases that search for underlying recurrances. The laws need to be changed to accommodate the realities, otherwise the floodgates are going to open after this case, which sets a really unwelcome precedent. My sympathies to Colin Hay.

Monday February 08, 2010

Denes, San Juan, Puerto Rico
Yet another blow for the composers, songwriters and musicians in general. So full of bad intentions, just to get money from such an original band. I for one been a profesional musician pretty much all my life was not able to hear the resemblance between the two on the 2 youtube video compaarison provided here, will have to take a much closer listen to it. My support to Colin James Hay and shame on the Larriking Music group for staining such great band's name.

Monday February 08, 2010

Antonio Carlos Coimbra, Santo Andre, Portugal
There are only 7 notes, 12 if you include the sharps and flats. They didn´t copy anything, it just happened. Some 20 years ago I wrote a melody for a friends poem. When he heard it he was amazed. He had previously written a song with that same poem and guess what? The first part of the song was exactly the same thing, melody and harmony wise. We share the same way of feeling the music. It was a coincidence. To be honest, I think we should sue lawyers who only exist to rip off money from successfull people. Law is dubious though, it depends on the judge and on the financial situation of the guy who hires the best attorney... But then, each case is different.

Monday February 08, 2010

Pierre Mayo, Winston Salem, Nc, United States
This is a poor case and this should tossed out! Do you realize how many songs take ideas from other songs? The list is to long to write. I for one do not hear it. They sound like to different songs to me, Producing hip hop for years that was a major concern in the 90's of not being able to create freely with another artist or songwriters song, that I could question, I mean you are sampling a persons work... their whole being is on that media format, but this, what in Gods name are they talking about?
Pure foolishness, and if they get away with it, they will keep pushing until you own nothing as a songwriter, it'll be like days of old getting taxed to death and that is no laughing matter!

Monday February 08, 2010

Jason, Townsville, Australia
I cant believe the great lengths people will go to to get "money for nothing"... hang on, I think that's a rip off of someone else's song... maybe if I keep searching I'll find that mark knopfler stole this from a kid in Liverpool who was in a string quartet.

So, where does this put composers like me in the future? then there's the case of Joe Satriani and Chris Martin...

This is ridiculous... there's got to be room to interpretation, dynamics, timbre and form, since there all terms that can be used to identify how different a song is.

Is there an available database of copyrighted melodies available to the general public, maybe we can force these publishers to make one, that might spend some of their extra court money on server maintenance, Ha!

Monday February 08, 2010

Peter, Melbourne - The Home Of 'men At Work'!, Australia
The full transcript of the judgement makes interesting reading, and can be found here:

http://www.austlii.edu.au/au/cases/cth/FCA/2010/29.html

Each side (Kookaburra vs. Down Under) was allowed to provide an expert. Unfortunately, it appeared that the Down Under side expert was not particularly convincing in his arguments. While the musical phrase in question was a very small part of Down Under, it was considered ‘the hook’, and thus given greater weight than just the 2 bars it travels.
Interestingly, Colin Hay, the only one of the songwriters still performing, started singing Kookaburra during live performances of Down Under from about 2002 as a humorous aside. This was of course raised in the case.
Even more interestingly, the Larrikin Music boss only realized there was a similarity between Kookaburra and Down Under after he watched on TV in 2007 a popular Australian music quiz program that asked panel members to “... name the Australian nursery rhyme that this riff has been based on” (interesting that it took some time before any of the music experts were able to provide the answer).

I agree with the Record Producer writer’s comments that the Kookaburra notes constitute a very small part of Down Under, and that if any compensation is paid it should be minimal. I also agree that this ruling is likely to make the lives of music composers far more difficult, while making lawyers and publishers much richer. It is a judgement that cataclysmically lacks common sense. A sad day for music indeed.

For those interested, a number of Facebook sites have sprung up in support of Colin Hay.

Monday February 08, 2010

Ken Randall, Wickepin, Australia
Yes what a low and shows Judges again that know nothing about the subject get to decide with a toss of their own worn coin. I like that one Scott of Melbourne. If those notes were not used how much would the (idiots) I mean larrikans recieved yes nil 0 zilch. Judjes have no idea on anything it seems always pandering to the criminals this time they created a crime. Marion proberly noticed all those years ago. She was proberly thrilled they used her notes. However a heartless company only sees dollars with no sence...

Monday February 08, 2010

Rahim, Kuala Lumpur, Malaysia
This is reference to what Hemi Jones wrote. Well Hemi, I would say that ! fortunately no one could copyright chord progressions. All our days would be real Blue(s) if that were to be the case!

Monday February 08, 2010

Rahim, Kuala Lumpur, Malaysia
I wonder what the basis of the judgement is. Your report dosen't touch on that but merely raised the alarming fear that any portion, however small the similarity, might constitute infringement.

I believe there's a convention which allows for a percentage of similarity prior to copyright infringement being trigered.

The flute rendition is undoubtedly kookaburra note for note covering the four bars of kookaburra. And as the kookaburra song is only eight bars, that flute rendition constututes 50% of the original song. Was it this fact that influenced the judge's decision ? Would there likely be appeals right up to the highest in the land ?

The other issue that bothers me is that the song itself contains no traces of the kookaburra melody and only the flute did in the arranged accompaniments. And, as far as I know, arrangements do not constitute nor would they give rise to copyright infringement ( I stand corrected on this, of course).

I'd be most interested to read the whole judgement as delivered by the judge to understand the rationale behind his decision. Any help on this ? And does anyone know if there's an appeal being lodged ? Rgds...Rahim

Monday February 08, 2010

Ray Capararo, Moree, Australia
Just another revenue collection avenue guise and will not help the music industry, i.e. the original owner or help the musicians currently trying to write / produce original songs because as we know all music is is in some form copied from other music sources just with a personal slant that makes it ours.

Monday February 08, 2010

Ludwig Bouwer, Pretoria, South Africa
What a joke - surely Larrikin have better things to do than victimize a truly brilliant band who dared to put together a few notes out of the choice of exactly 12 in the western scale? How many Blues and Folk artists are going to get sued next then? Anyone who learns some tunes around a campfire is going to end up using three chords or five notes in a row that isn't "there's". Hey, why don't we sue scriptwriters for using similar plots in Hollywood while we're at it? Or motorcar companies for all using four wheels and a roof? Or Fashion designers for all putting two sleeves on a shirt...

Monday February 08, 2010

Neil Porter, Dapto, Australia
"Down Under would have been a successful song with a different flute melody" This is the main point, really. For all we know, that flute line could have been inprovised on the spot in the studio. It's an insturmental lead break, not the melody line of the song. I suspect the judge was ignorant in the music area and couldn't tell the difference between the song itself and any instrumental accompaniment. I also supect that the songwriters will now declare bankruptcy as they likely spent all the money years ago and are all likely broke now. After all, although they had a couple of good hits, their career was quite short.

Apart from all that, here we go with many court cases for the 1000s of songs with the same phrases in them here and there.

It's all bad. :-(

Monday February 08, 2010

Hemi Jones, Blenheim, New Zealand
Does this extend to chord progressions? Think about it...

Monday February 08, 2010

Lorena, Montevideo, Uruguay
mmm...I can't hear the similarity between the two. Larrikin music must be powerful, they obviously paid to get a deaf judge!

Monday February 08, 2010

Scott, Melbourne, Australia
A real shame, as a strong supporter of copyright law this is a shameful travesty and not in the spirit of the statue or Berne. Larrikin should be right careful at this point. I can imagine easily a bunch of Aussie artists listening to their library for infringements - wouldn't be hard either.

Colin Hay's was my Year 9 English teachers fiancé. He was a really nice guy then (before Men At Work hit the charts) and seem to be now. Thumbs down Larrikin - you started life as a label for the underdog artist. Now you're just dogs without the under?

Monday February 08, 2010

 


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