Men At Work Ordered To Pay 5% Of Earnings On 'Down Under' Over Copyright Claim

from the kookaburra-this dept

Tue, Jul 6th 2010 12:06pm — Mike Masnick

Last summer we were among those amazed at the claim from a music publisher that the popular 80's song, "Down Under," by the band, Men at Work, supposedly infringed on a popular Australian folk tune, Kookaburra, that was written back in the 1930s. The publisher who sued, Larrikin, had only taken possession of the copyright on the folk tune in 2000, and didn't even notice the similarity until a TV quiz show pointed it out. You would think that this, alone, should make any copyright claim null and void. But... not to the Australian courts, who first ruled that the song infringed earlier this year and now (thanks to sinsi for pointing this out) have said that the band needs to pay Larrikin 5% of its royalties from 2002 onward. The only "good" news is that Larrikin had asked for 60%, even though the use of Kookaburra is limited to a little flute solo, and is clearly an homage to the song. Also, since the royalties only start in 2002, well after the song has faded from popularity, it may limit what Larrikin gets. Still, the whole lawsuit, and the fact that this was found to be infringing, is a bit of a travesty.

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Filed Under: australia, copyright, down under, kookaburra, men at work
Companies: larrikan music

21 Comments

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Aaron Von Gauss (profile), 6 Jul 2010 @ 12:39pm

Travesty?
A travesty or an embarrassment? I'm all for protecting the rights of artists and other content producers, but I have the feeling this one was long ago abandoned.
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Anonymous Coward, 6 Jul 2010 @ 12:44pm

Australia, the same country where the wheel is patentable.

http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html

Figures .
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Anonymous Coward, 6 Jul 2010 @ 12:46pm

An interesting observation of the decision by Judge Jacobson in the matter of Larrikn v. EMI et al.:

The damages which follow from my findings on liability are not damages for copyright infringement [emphasis mine]. Rather, they are damages under the Trade Practices Act 1974 (Cth) (“the Act”) for misrepresentations made by the respondents to collecting societies, the Australasian Performing Right Association (“APRA”) and the Australasian Mechanical Copyright Owners Society (“AMCOS”).
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Anonymous Coward, 6 Jul 2010 @ 12:48pm

60 percent of zero is also 5 percent of zero.
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Anonymous Coward, 6 Jul 2010 @ 1:04pm

Beds are Burning
They did sing "Let's give it back". Seems fitting now, even if back is to some random copyright holder.
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Anonymous Coward, 6 Jul 2010 @ 1:08pm

Re:
Nah. 60% of 0 kinda looks like a "u" or a "v", while 5% looks more like a ".". Totally different.
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Vanye (profile), 6 Jul 2010 @ 1:11pm

Re: Beds are Burning
That was Midnight Oil, not Men At Work.

Ironically, Peter Garrett is (or was, somewhat recently) an MP in Austrailia.
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Anonymous Coward, 6 Jul 2010 @ 1:13pm

Seems easy enough to solve. Fisrt get an accounting statement from the label. Second calculate 5% of that value. Third send a bill as everybody knows nobody makes money in the recording industry.
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Dementia (profile), 6 Jul 2010 @ 1:13pm

Re: Beds are Burning
Beds are Burning was released by Midnight Oil, not Men at Work.
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Danny, 6 Jul 2010 @ 1:16pm

...and a bit scary.
"Still, the whole lawsuit, and the fact that this was found to be infringing is a bit of a travesty."

This case may have very well opened up some proverbial gates. I can imagine people now trying to scoop up copyrights to old songs in the hopes that they have have sampled and get a lawsuit out of it.
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Dave (profile), 6 Jul 2010 @ 1:17pm

Re: Beds are Burning
I believe you are thinking of Midnight Oil.
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Anonymous Coward, 6 Jul 2010 @ 1:37pm

Re: Re: Beds are Burning
Well, those austrailians all look the same.
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Eugene (profile), 6 Jul 2010 @ 2:03pm

Re: Travesty?
What's obnoxious about it is Larrikin isn't even the content producer. It's just the publisher who most recently acquired the copyright to that folk song. So they're not even protecting the rights of any artist at this point, just some faceless company.
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Joe Harkins, 6 Jul 2010 @ 2:22pm

a hoax? looks like one
I guess no one else has picked up on the Aussie meaning of the word Larrikin. I think you all have been punked.

Here's the first two returns on a Google search for the word.

Larrikinism - Wikipedia, the free encyclopedia
The term larrikin was used to refer to "a mischievous or frolicsome youth", as reported in the Supplement, English Dialect Dictionary, editor J. Wright, ...
Etymology - Evolution of Larrikin culture - Larrikin - See also
en.wikipedia.org/wiki/Larrikinism - Cached - Similar

larrikin: Definition from Answers.com
Sep 6, 2006 ... larrikin n. Australian A person given to comical or outlandish behavior. [Origin unknown.]
www.answers.com/topic/larrikin - Cached - Similar

It's kind of the Oz equivalent of Til Eulenspeigel or those guys in New York who do the pantsless subway ride event every year.
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mike allen (profile), 6 Jul 2010 @ 3:17pm

1930s
surely this kookaburough song out of copyright by now
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Anonymous Coward, 6 Jul 2010 @ 3:59pm

Re:
Accounting statement?

LoL

From the industry that is notorious about never making accurate accounting statements and is very well known for the "creative accounting" practices that led Al Capone to jail?
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vacuum369 (profile), 6 Jul 2010 @ 4:06pm

GOLDDIGGING!
This is yet another example of Golddigging! It's Pathetic, the song in question (a classic by the way) was released almost 30 years ago, and the band Men At Work are long out of the mainstream. What (ethical) reason could these publishers have for trying to extract money from these musicians? NONE that I can see, especially since they did not even own these rights when the song was a radio hit! Folk music NEVER sold as well as Pop Music! It seems to me, Men at work borrowing a melody from Kookaburough would only HELP bring in revenue! The way the entertainment industry is heading Scares Me!
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AW, 6 Jul 2010 @ 4:24pm

http://www.dailytelegraph.com.au/news/reggae-riff-claimed-kookaburra-classic/story-e6freuy9-12257924 91632?from=public_rss

Actually has a good comparison of the parts that are supposed to be similar... the sheer fact it is less than a few seconds out of an entire song should have been enough to throw this out.
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Anonymous Coward, 7 Jul 2010 @ 10:05pm

Re: a hoax? looks like one
No, not a hoax, unwelcome irony perhaps. i wonder if larrikin realise the damage they've done to themselves with this shit.
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ThaTruth (profile), 27 Apr 2012 @ 2:13am

Infringement Is Infringement
If you came up with this tune or where part of it's due process, isn't it only right that others respect it and put themselves in the shoes of the creator to uphold these principles. How would someone dare suggest that to do something of the opposite be acceptable.
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John, 15 Oct 2014 @ 11:19am

Re: Re: Travesty?
I am sure the Larkin Fartkin bungmuch publishing company purchased that song just to go after men at work
what a bunch of greedy wipes!!!
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