Appeals Court Still Says 'Down Under' Infringes On Decades Old Folk Song

from the men-at-work dept

Thu, Mar 31st 2011 2:07pm — Mike Masnick

A couple years ago, Australian music publisher Larrikin Music accused the iconic 80s Australian band "Men at Work" (and its label, EMI) of infringing on its copyright for the classic Australian folk song Kookaburra in their hit song Down Under. You can listen to both songs in the videos below:

If you can't tell (and some can't), a bit of the flute line in the Men at Work song is similar to the meldoy in Kookaburra. Most normal people would call this a tribute or an homage. But not Larrikin. The company, which only got the rights to Kookaburra (which was written in the '30s) in 2000, hadn't even noticed the similarity until it was mentioned in a game show on TV. So, of course, Larrikin sued. And, amazingly, it won... leading the court to grant Larrikin 5% of all of the song's earnings.

This is ridiculous for a variety of reasons. It's clearly not a straight copy, but a use of the well-known folk song to represent the atmosphere of Australia. The fact that Larrikin didn't even notice until it was pointed out on TV should also suggest that this wasn't some massive infringement issue. Finally, the fact that the song was a hit in the early '80s should have set off some sort of statute of limitations issue. Instead, Larrikin won...

EMI reasonably appealed the ruling, but chillienet points out that Larrikin has won on appeal as well, as a three-judge panel ruled that the song is infringing. The court even ordered EMI to pay the court costs as well. I guess the lesson is clear: don't promote decades old folk songs in your music in Australia.

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Filed Under: australia, copyright, folk song, kookaburra
Companies: emi, larrikin music

39 Comments

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mike allen (profile), 31 Mar 2011 @ 2:19pm

Wrell having listened to both songs I CANT HEAR A SINGLE BIT OF THE OLD FOLK SONG tIf I had any thing to do with the band Men at work id tell the court and Larrikin to stick it not one penny or what ever counts for currency down under then leave the country stuff em
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Squirrel Brains (profile), 31 Mar 2011 @ 2:23pm

While I feel this ruling is ridiculous, it is hard to feel sympathy for EMI. After all, their ilk made this bed.
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- IronM@sk, 31 Mar 2011 @ 2:36pm
  
  Re:
  Oh, the irony.
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Miff (profile), 31 Mar 2011 @ 2:37pm

As an amateur musician, let me say this (without being familiar with the songs in question in the article):

1) Music does not operate like some other art forms, such as writing, in that a single expression does not represent a specific idea. For example, the sentence "He went to the store." can only mean one thing, that a male traveled to a store. The series of notes C(1/4)-E(1/8)-G(1/4)-E(1/8)-C(1/4), however has no specific meaning.

2) Since music has no specific meaning, it operates on a different level of conciousness then literature, and therefore it's difficult to tell whether a series of notes is wholly original or based on something remembered.

3) The only way to know for sure is for music to be composed by those who have never heard any other music before, which would be nearly impossible to do.
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- Lauriel (profile), 31 Mar 2011 @ 6:58pm
  
  Re:
  I agree completely with what you say about music, but I'd like to highlight the danger of using a hard and fast rule for expression v meaning in any genre.
  
  Let's use literature, in which you say one expression only has one meaning:
  
  a) Woman without her man, is nothing.
  b) Woman: without her, man is nothing.
  
  Same words, or string of letters composing an idea, however completely different meaning.
  
  Another example:
  
  a) He didn't marry her because she was rich.
  b) He didn't marry her, because she was rich.
  
  Even in literature, the same foundation letters can be used to create expression that encapsulates a different idea, even if the basic 'notes' are the same.
  
  Completely unrelated, I had the pleasure of being in (lead singer of Men at Work) Colin Hay's audience the first time he performed that song after the ruling. He got a standing ovation, and rightly so. I've not seen anyone applaud Larrakin. Just because the court agrees with you, still doesn't mean the general population (read: market) will.
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Anonymous Coward, 31 Mar 2011 @ 2:39pm

On the plus side, this gives EMI some ammo when they sue down loaders. "Hey, when we infringed we lost 5% of royalties. You downloaded a song and owe us 5% of the royalties!"
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- Anonymous Coward, 31 Mar 2011 @ 2:51pm
  
  Re:
  Sure, they're welcome to 5% of the royalties that the downloader earns from using that copyrighted work. I'm feeling generous, let's give them 100% of the royalties that downloaders earned.
  
  If there was a copyright violation, EMI got off easy, it didn't even pay the minimum statutory damages that they would demand in copyright cases. Let's see how they'd feel giving up $700 per sale, stream or broadcast of the song to Larrikin.
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  - Anonymous Coward, 31 Mar 2011 @ 3:17pm
    
    Re: Re:
    EMI loses 5% of all royalties of that song. So the downloader would have to pay 5% to all royalties that song has ever earned. Thus making it a bad deal.
    
    Man, I hate stupid anonymous cowards.
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    - Jay (profile), 31 Mar 2011 @ 3:56pm
      
      Re: Re: Re:
      ...
      
      There was a lot of irony in that statement which you seemed to miss...
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    - Anonymous Coward, 31 Mar 2011 @ 4:07pm
      
      Re: Re: Re:
      EMI only had to pay 5% of the royalties that EMI earned from its use of the tune. They didn't pay on any royalties that the owners of the original Kookaburra tune ever earned.
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Anonymous Coward, 31 Mar 2011 @ 2:39pm

I wonder if EMI made any arguments which will one day be held against it in court. Such as a "fair use" argument.
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Steven (profile), 31 Mar 2011 @ 2:49pm

This is Theft.
With all the whining about how infringement is no different than theft (despite the fact it's not even close), this is an example of real theft.

Culture has been stolen from the people. It continues to happen and only gets worse as ridiculous laws continue to expand the depth and breadth of copyright.
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- Ken (profile), 3 Apr 2011 @ 5:54pm
  
  Re: This is Theft.
  One of the most egregious examples of cultural theft is Disney and their banning of the Movie "Song of the South" The Uncle Remus stories was a compilation of black folk lore during the slave days. This part of black history has nearly been completely wiped out due to political correctness.
  
  The first African American to ever win an oscar was the portrayal of Uncle Remus in Song of the South. That has now been expunged from history so now only older people who remember watching the movie have any idea what these stories are all about.
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Anonymous Coward, 31 Mar 2011 @ 3:09pm

5% of the song used, 5% of the profit received. What's wrong?
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- Richard (profile), 31 Mar 2011 @ 3:43pm
  
  Re:
  5% of the song used, 5% of the profit received. What's wrong?
  Show me ANY song that doesn't use at least 5% of a pre-existing song.
  If this type of judgement became the norm it wopuld kill music stone dead.
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Ron Rezendes (profile), 31 Mar 2011 @ 3:16pm

Explanation please....
How does a company, who didn't own the rights at the time of the "infringement" (obviously used in the loosest possible terms even for those who are the most die hard pro-copyright), even make a case for damages when they didn't own the rights at the time this occurred?

Apparently, both the justice system and the direction in which water flows South of the equator are in direct contrast to what happens North of the equator!

I consider myself pretty open minded but I'm having a tough time wrapping my head around this one (or two if you count the appeal that was also lost).
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- abc gum, 31 Mar 2011 @ 6:15pm
  
  Re: Explanation please....
  "Apparently, both the justice system and the direction in which water flows South of the equator are in direct contrast to what happens North of the equator!"
  
  Righthaven ?
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Nathan F (profile), 31 Mar 2011 @ 3:32pm

If I were EMI or Men Down Under, I would remind Larrikin that 5% of nothing.. is nothing. And pull any product that has that song from the shelves that they are legally able to and deny an broadcast/performance rights to anyone requesting the use of the song.

Yes I know it is a bit of cutting off ones nose to spite its face, but if Larrikin is going to be a dick about something written 80 years ago and should have been in the public domain to begin with then to hell with them (Larrikin and company).
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- charliebrown (profile), 1 Apr 2011 @ 8:48am
  
  Re:
  I understand where you are coming from but down here it is only one of two songs by Met At Work that still gets regular airplay, the other being "Who Can It Be Now?" which, personally, I like better anyway.
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ChurchHatesTucker (profile), 31 Mar 2011 @ 3:42pm

See, this is why
The company, which only got the rights to Kookaburra (which was written in the '30s) in 2000, hadn't even noticed the similarity until it was mentioned in a game show on TV.

This is why copyright needs to last damn near forever. It can take a LONG time to figure out if something is infringing.
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- Jay (profile), 31 Mar 2011 @ 3:58pm
  
  Re: See, this is why
  And so...
  
  How much in royalties is the song making?
  
  This is as bad as the gym fees for songs that was being promoted close to a year ago.
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- abc gum, 31 Mar 2011 @ 6:21pm
  
  Re: See, this is why
  CHT, you insensitive clod.
  
  Can't you see that Larrikin Music needs this sort of incentive so that they will be encouraged to produce additional works of art? Clearly, copyright is working here as intended and we will soon be seeing a new CD hit the charts from Larrikin Music. I'm sure it will kick ash.
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Fernando, 31 Mar 2011 @ 4:07pm

grammar FAIL
See the erroneous apostrophe in the headline?
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- Anonymous Coward, 31 Mar 2011 @ 4:38pm
  
  Re: grammar FAIL
  You forgot to capitalize the letter g in the word grammar and the word fail does not need to be in all capital letters. You also forgot a period.
  
  Your welcome!
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  - Jay (profile), 31 Mar 2011 @ 5:13pm
    
    Oh, the agony of the apostrophe!
    "Your welcome!"
    
    *eye twitches*
    
    Diz is BADE!
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  - Not That Chris (profile), 31 Mar 2011 @ 6:07pm
    
    Re: Re: grammar FAIL
    Muphry's Law strikes again!
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    - Anonymous Coward, 31 Mar 2011 @ 7:03pm
      
      Re: Re: Re: grammar FAIL
      That error was 100% intestinal. I meant to do it.
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Sony needs a finger in the arse, 31 Mar 2011 @ 4:07pm

"This video contains content from Sony Music Entertainment, who has blocked it in your country on copyright grounds.
Sorry about that."

how about a fuck you Sony?
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- Capitalist Lion Tamer (profile), 31 Mar 2011 @ 7:24pm
  
  Re:
  Apparently, it only contains 95% content from Sony Music Entertainment. You should have been able to watch 5% of it.
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- charliebrown (profile), 1 Apr 2011 @ 8:52am
  
  Re:
  Try this one http://www.youtube.com/watch?v=JsQDPaaY2kE
  
  Unless you are in Germany. If you are, you're out of luck
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Colg, 31 Mar 2011 @ 4:53pm

This is exactly the kind of crap that should make people want to grab their torches and pitchforks and storm the castle.
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Ash, 31 Mar 2011 @ 6:44pm

Its already the 1st of April down under...
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Capitalist Lion Tamer (profile), 31 Mar 2011 @ 7:21pm

Finally...
Someone has figured out how to make folk music profitable.

With any luck, the coffee shops and subway platforms will empty out and the courtrooms will fill up with a bizarre mix of neo-hippies and various representatives of K-Tel 80's compilations.
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Anonymous Coward, 31 Mar 2011 @ 8:50pm

I guess the lesson is clear: don't promote decades old folk songs in your music in Australia.

No, the lesson is don't use someone else's copyright material in your song. If you want to pay tribute to something, get the rights first and do the tribute after.
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- Anonymous Coward, 31 Mar 2011 @ 9:26pm
  
  Re:
  How would they get the rights to something that wasn't under copyright when they released the song?
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  - Anonymous Coward, 1 Apr 2011 @ 6:48am
    
    Re: Re:
    The song was written in 1935 and has been under copyright all of that time. Larrikin only obtained ownership of the rights in 2000, but the piece was always copyright.
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Billy Wenge-Murphy, 1 Apr 2011 @ 1:22am

If it's a "folk song" then it by definition belongs to everybody.

God help us the day someone like Lady Gaga is a "folk singer"
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charliebrown (profile), 1 Apr 2011 @ 8:39am

I come from the land down under
A case like this will make you chunder*
Can you hear all the lawyers plunder
I'm gonna run, I'm gonna take cover

This flute riff has been deleted due to a copyright claim by Larrakin Music. Sorry about that :\

(*chunder = vomit)
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marjorie, 9 Nov 2011 @ 1:56am

journal
i like this song kookaburra
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