Australian Court Says Men At Work's 'Down Under' Infringes On Folk Song; Only Took Decades To Notice
from the copyright-gone-mad dept
Well, apparently not all Australian courts are sensible when it comes to copyright rulings. While we recently wrote about the wonderful iiNet decision, in the comments, someone pointed to a bad decision made on the same day. It's a case we wrote about last year involving the famous song Down Under by the band Men at Work -- a big hit back in the 1980s. But in 2007, after seeing a joke on a TV trivia program about that song's similarities to an old Australian folk song, the publisher who held the copyright on the folk song sued. Yes, this was decades after the song was popular, and the publisher, Larrikan Music didn't notice any similarities at all. It seems like this should be an open-and-shut case. The "use" was minor, at best, and didn't do any damage to the market for the original song, "Kookaburra," which is popular among schoolkids, apparently. There's simply no harm done and anyone with an ounce of common sense should see that.But... that's not what the court found. It's ruled that Men at Work infringed on Kookaburra, and now the band members and their record label need to pay up -- potentially huge sums. It's difficult to see how this makes sense under any sort of copyright regime.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: australia, copyright, down under, kookaburra, men at work
Companies: larrikan music
Reader Comments
Subscribe: RSS
View by: Time | Thread
Question
Fosters: Australian for damages!
Also, there should be a Kangaroo court joke in there somewhere, but I can't seem to find it....
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]
Interesting question
Actually, this begs an interesting question. Lets say Colin Hay died (or whomever has the copyright) and this gets passed on to his heirs (or another corporation). Now, 3 decades later, someone comes to sue. Do they sue the heirs/corp? Must be, since they are left holding the bag and have to pay for the sins of their "fathers." Now, if its a big media corp, you can bet your ASS they would try to get it dismissed on the grounds that "we didnt do it, this other guy did" and thus making sure that copyright ONLY works ONE WAY.
[ link to this | view in thread ]
Re: ...creator dies.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Some extra details
The original song was written by a school teacher in 1934, who died in 1988.
Land Down Under was written and released in 1979 and 1981.
Larrikin Music (aka Copyright troll) bought the rights in 1990.
Larrikin Music found out about the similarities in 2007 because of a game show on TV and decided to sue.
Larrikin Music (aka Copyright troll) has done absolutely no work in this situation. They had nothing to do with the creation of the original song. They didn't notice the similarities. The only effort they made was to wait for the originator to die, and now reap rewards that the originator obviously didn't feel entitled to. The originator was alive when the song was an international hit, and if she felt entitled she would have sued a long time ago.
[ link to this | view in thread ]
I've noticed a pattern here.
Might I respectfully suggest that you consult your doctor about your medication schedule? :)
[ link to this | view in thread ]
No even original
[ link to this | view in thread ]
It's all a Croc,(k),, ( pardon the pun)
Could you imagine some descendant of Francis Scott Key suing the U.S. gov't and every professional sports team for using and broadcasting the words to the Star Spangled Banner? Remember,,, It was written as a poem,, He never gave permission to have it set to music. Or is that considered a derivative work?
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: ...creator dies.
[ link to this | view in thread ]
If the record labels get sued for copyright infringement isn't that just to much like justice? Well, maybe not for the artists, Love that LP by the way. Think Ill download some now.
[ link to this | view in thread ]
Re: Re:
I think you'd also have to offer a carrot to the forgetful rights-holders and orphaned works. A grace period of, say, 3 years where the copyright can be reapplied and the song taken back out of public domain. So a rights-holder basically has a decade to decide if the copyright is profitable enough to keep paying for.
Think about how many songs from before 2003 that you know. Then how many of those are still a significant source of income for the artist. If it's still a profitable song then the rights-holder has the money to pay for a copyright extension.
[ link to this | view in thread ]
[ link to this | view in thread ]
Guess it's no different from someone having the copyrights on Happy Birthday..
[ link to this | view in thread ]
Damages
[ link to this | view in thread ]
Re: Some extra details
I question whether the original music really is a "folk" song, I thought folk sosngs were "everyone knwo it and its been around since Jesus was in thrid grade and no one knows who wrote it."
[ link to this | view in thread ]
Wiggles
[ link to this | view in thread ]
Similar?
What doesn't seem to be there is any resemblance to "Down Under". I found a recording and played it, then played Kookaburra and I just don't hear it.
[ link to this | view in thread ]
Re: Some extra details
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Some extra details
[ link to this | view in thread ]
Re: Similar?
Also, it's just the flute solo that's supposed to be 'similar' Similar, in this case, meant 'two bars'.
[ link to this | view in thread ]
F'n ridiculous.
[ link to this | view in thread ]
Re: Re: Some extra details
[ link to this | view in thread ]
Re: Re: Similar?
In the songbook arrangement, the quoted passage is, as you said, two bars long. The entire melody of "Kookaburra" is 8 bars long. I don't know if I'd call 1/4 of something a substantial part -- "Kookaburra" is a pretty short song.
In any case, the riff is rather incidental, not part of the verse or refrain of "Down Under".
[ link to this | view in thread ]
Re: Re: Re: Similar?
[ link to this | view in thread ]
In fact, I think that 'Kookaburra' is a national folk song, sung by Girl Guides and schoolchildren the country over, and that it's appropriate to reference it in a 'Down Under', which is song about Australia. If they had referenced it in the lyrics, it would be fair use. Why is it different with the melody?
Last, but not least, Marion Singer is quoted as having taking the four bars from the actual sound that the kookubura bird makes, so maybe somebody should sue Larrikin Music on behalf of the bird...
[ link to this | view in thread ]
That is the most ridiculous thing I have ever heard.
[ link to this | view in thread ]
Re: Re: Re:
Nothing should ever be removed from the public domain IMO. Orphaned works can be dealt with by an opt-in system, rather than the can't-even-opt-out system we have now, but if you forget to renew your copyright, tough. Of course the lobbyists will never let anything like that happen.
[ link to this | view in thread ]
But everybody knows
http://www.youtube.com/watch?v=qHBVnMf2t7w
[ link to this | view in thread ]
Re: Re: Re:
1. Every time renewal comes up, it should cost double whatever they paid last. There needs to be a *really* strong incentive against renewal, or monopolists will simply keep monopolizing. This is particularly problematic, in that in the case of really popular (or culturally significant) cultural 'product' they can keep generating billions just by issuing "greatest hits" or "remastered" versions or some other bullshit that has absolutely nothing to do with creating anything NEW.
(I'm thinking in particular, of the recent Beatles "remasters" -- including the dubious con-job known as "Beatles in mono box set".) Hell, at least Beatles: Rock Band was somewhat interesting, and provides the illusion of "participating in culture".
But back to my original point: there needs to be a strong disincentive against such monopolies, lest we get right back to a point where monopolists (oops, I mean "rights-holders") actually start believing they're "entitled" to monopoly privileges as a matter of "right".
They need to be REALLY conscious of the whole "copyright bargain" thing, or we're RIGHT back to the point where they can portray the Public Domain as "unfair".
Maybe make the copyrights only last 2.5 years, with a maximum of 1 renewals, for a TOTAL of seven years?
Still enough time for the latest, corporate "one-hit wonder" to go "multi-platinum", but short enough so as not to become socially odious.
[ link to this | view in thread ]
Re: Re: ...creator dies.
[ link to this | view in thread ]
What does TAM "think?"
Anybody remember "Eliza", the virtual psychoanalysis program? I'm pretty sure TAM is something like that. It and other IP-trolls are nothing but more or less poorly-designed propaganda-bots (based on proprietary, closed-source software, of course).
That would explain why TAM can only regurgitate RIAA talking-points. Anything beyond a fairly-limited collection of stock phrases causes It's poorly-written code to either spit out broken crap like "no...but...unless", or crash, and be unable to post more propaganda.
TAM hasn't responded because whoever's running it hasn't managed to reboot it, yet.
[ link to this | view in thread ]
Let's hope that Men at Work will fight back!
[ link to this | view in thread ]
exponential payment
If they're still making over a million a year on the work after 21 years, it'll be worth paying for, otherwise it becomes public domain, and the owner has to find other ways to make money. Copyright truly hurts any work that can't turn a profit. It can sit unpublished, unavailable, and unprofitable for decades.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Look at painters reusing the artistic styles of their predecessors; authors reusing and reimagning the stories of old, and incorporating common themes; musicians reusing the same chord progressions of old classic songs. This recent ruling, combined with the indefinite cycle of copyright term extensions, will only serve to kill this inspirational culture for good.
For the comments here making suggestions about how long copyright terms should be, keep in mind that term extensions are bad. Keeping track of which works had their copyright extended and which didn't is already difficult enough.
The ideal system would be a fixed term from the year of publication or, if it can be reliably determined, the year of creation. This would make the system fair and easy. There's no need to know about when the author died, or whether the copyright is held by a corporation, or whether the copyright holder applied for extensions. If the work has a known creation or publication year, determining its copyright status is easy. A reasonable term would, I think, be somewhere between 20 and 40 years.
This still leaves the problem of orphan works who's authors cannot be found, and works without known publication or creation dates, but at least with a relatively short copyright terms, you can still guarantee entry into the public domain as the earliest known year the work was discovered + length of fixed copyright term.
[ link to this | view in thread ]
Re: But everybody knows
[ link to this | view in thread ]
Doesn’t Matter About The Delay
[ link to this | view in thread ]
Re: Question
[ link to this | view in thread ]
Re: Doesn�t Matter About The Delay
copyright infringement is the same as
murder
Wow
You need help
[ link to this | view in thread ]
In Defense of the Plaintiffs
While it's true the notes aren't part of the versus or chorus, they are the melody line for an instrumental interlude between verses and therefore feature prominently in the song. While not solely responsible for the success of Land Down Under, they do help to give it that Australian flavor.
I agree that the current copyright laws are overboard, but for now they are the law.
[ link to this | view in thread ]
Folk songs gone wild
Therefore, I suggest for the people of Moldova to immediately sue the Russian Federation for Tchaivovsky's use of a folk song in his 1st Concerto.
[ link to this | view in thread ]
I Found Another One!
[ link to this | view in thread ]
Having only learned of this recently I'm hugely disappointed. I grew up with 'Down Under' being played everywhere and it just plain old sucks to see a London firm (Larrikin Music) suing an Australian band over 2 bars that are similar to some other Australian song.
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]