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Music Australia The Almighty Buck The Courts Your Rights Online

AU Band Men At Work Owes Royalties On 'Kookaburra' 371

Posted by kdawson
from the that's-our-culture-they're-locking-up dept.
neonsignal writes "Iconic Australian band Men at Work have been ordered to pay royalties for an instrumental riff in their song 'Down Under.' The notes were sampled from a well-known children's song 'Kookaburra Sits in the Old Gum Tree,' written in 1934 for a Girl Guide's Jamboree. The Justice found the claims of the copyright owner Larrikin to be excessive, but ordered the payment of royalties and a percentage of future profits. Let's hope the primary schools are up to date with their ARIA license fees!"
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AU Band Men At Work Owes Royalties On 'Kookaburra'

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  • 1934 (Score:5, Insightful)

    by Arancaytar (966377) <arancaytar.ilyaran@gmail.com> on Wednesday July 07, 2010 @01:21AM (#32822334) Homepage

    Fuck, is the guy who wrote this even still alive?

    Oh right, copyright law is written for zombies.

    • Re:1934 (Score:5, Funny)

      by JustinRLynn (831164) on Wednesday July 07, 2010 @01:22AM (#32822346)
      Residuuuuuuaaaaaaaaalllllllllllzzzzzzz!
    • Re:1934 (Score:5, Informative)

      by norpy (1277318) on Wednesday July 07, 2010 @01:24AM (#32822360)
      The person who wrote it wrote it as part of a competition for the girl scouts. She is long dead and the scouts sold the rights long ago.
    • Re: (Score:3, Informative)

      by trentfoley (226635)

      According to the bbc article:

      Larrikin Music, which is owned by London's Music Sales Group, bought the rights to the classic folk song in 1990, following Sinclair's death in 1988.

    • Re:1934 (Score:5, Funny)

      by phantomfive (622387) on Wednesday July 07, 2010 @01:32AM (#32822432) Journal
      Someone made a point that I think made sense......if we're going to have copyright, we ought to not make it based on the life of the creator.....otherwise it will be motivation to kill artists. Make it 15 years from the time it was created or something.
      • Re:1934 (Score:5, Insightful)

        by QuantumG (50515) * <qg@biodome.org> on Wednesday July 07, 2010 @02:28AM (#32822734) Homepage Journal

        Unfortunately "artists" provide their own reasons for us to want them dead.. often: nagging about copyright.

        • Re: (Score:3, Informative)

          by mcgrew (92797) *

          It's not usually the artists, who (in the music industry in the US at least) don't hold copyright to their own work. Unless they've changed the law to say differently (and since the corporates are the ones lobbying for copyright extensions and whatnot, I doubt it), the record label holds the copyright, not the artist.

      • Re:1934 (Score:5, Insightful)

        by Chrisq (894406) on Wednesday July 07, 2010 @02:32AM (#32822760)

        Someone made a point that I think made sense......if we're going to have copyright, we ought to not make it based on the life of the creator.....otherwise it will be motivation to kill artists. Make it 15 years from the time it was created or something.

        I know this is modded funny, but seriously say you are write a song that sounds like something else [vwh.net] and the judge rules that you might have subconsciously copied it. You have a potential bill for millions that will go away if this artist dies....

        • Re: (Score:3, Informative)

          by Vintermann (400722)

          Ah, poor old George Harrison. But I don't think he'd actually kill anyone over it. He seemed to take it with a certain amount of humour [youtube.com].

        • Re: (Score:3, Insightful)

          by Anonymous Coward

          This "subconcious copy" thing is why I do not want to learn how to create music. It is too risky in today's climate. If I create some music which sounds somewhat like another piece of music someone else had created before, even if I had never heard it, I could be sued and lose a lot of money.

          And people still say copyright is supposed to encourage creativity...

          • Re:1934 (Score:4, Insightful)

            by cgenman (325138) on Wednesday July 07, 2010 @09:47AM (#32826270) Homepage

            I'm just waiting for the guy who invented the power chord to sue for the hella dollars he is rightfully owed.

            Music is a cultural artifact. Cultural artifacts inherently build upon eachother, or else they are meaningless. A big part of music litigation is finding that line between building on what someone else has done, and just straight duplicating. That line isn't always clear. And frequently, trial judges aren't the right people to be making that distinction.

        • Re:1934 (Score:5, Insightful)

          by delinear (991444) on Wednesday July 07, 2010 @06:07AM (#32823916)
          The artist in this case is already dead. The rights to the song were sold after her death, and the song that's claimed to be infringing was released before the rights were sold (i.e. the current rights holder bought the song at a point when they had every reason to know of the allegedely infringing song), that still wasn't enough to prevent them having to pay up. This is the kind of crap people are referring to when they say ridiculously long copyright stifles creativity rather than promoting it - seriously, it's one bit of one song that sounds kind of like a tune someone wrote half a decade earlier.
    • Re: (Score:3, Interesting)

      by Eskarel (565631)

      Unfortunately no, she's not, or this probably wouldn't have happened as she would likely not have sued. She was however alive in 1981 when they lifted the notes.

      Realistically though, this hasn't exactly been a win for either party. The judge believes they plagiarized the notes(which is fairly obvious when you listen to both works), but he's only ordered them to pay 5% of future profits and royalties back to 2002. While this song is still played, one would presume the vast majority of the revenue it has or e

    • Re: (Score:2, Funny)

      Yeah, the song even references them. "On a hippie trail, head full of zombie."
    • Re: (Score:3, Insightful)

      by Yvanhoe (564877)
      Copyright expires 70 years after the death of the author. Yes, this is madness.
  • bbcnews.com article [bbc.co.uk] with, I guess, the same story - can't tell because original link gives a server generated "Sorry, Page not Found" error

  • link (Score:5, Informative)

    by Anonymous Coward on Wednesday July 07, 2010 @01:25AM (#32822364)
  • Reminds me of... (Score:5, Interesting)

    by Retron (577778) on Wednesday July 07, 2010 @01:25AM (#32822368)
    Reminds me a bit of Bittersweet Symbphony, the Verve song that was deemed to have ripped off an obscure version of The Last Time by the Stones.
    I guess a lot of that goes on, whether intentional or not.
    • by Yergle143 (848772) on Wednesday July 07, 2010 @01:37AM (#32822460)

      Why don't all you "Pirates" come together and write a computer program to generate all possible melodies for the 32 bar AABA, form. Then publish the whole lot under the creative commons license or whatever, call western music complete, and then download in peace.

      Also these lawsuits are always bunk. Noone ever sues over the harmony do they?

      • by Zironic (1112127) on Wednesday July 07, 2010 @01:48AM (#32822502)

        Well, atleast Swedish copyright law states explicitly that machine generated things can't be copyrighted because they're not creative.

        • Re: (Score:3, Funny)

          by dangitman (862676)

          Well, atleast Swedish copyright law states explicitly that machine generated things can't be copyrighted because they're not creative.

          But what about the mutterings of muppet chefs?

        • by Mathinker (909784) *

          > Swedish copyright law states explicitly that machine generated things can't be copyrighted because they're not creative

          I, for one, have never come across a piece of music which was generated by a machine without any intervention of human creative force.

          By strict definition, either nothing comes under that classification, or most modern 3-D animated movies do come under that classification.

          Yes, I know, the legal system doesn't work that way. Still, it seems to be a stupid law as you state it.

        • by Rockoon (1252108)
          He said 'all permutation'
        • by richlv (778496)

          but you claim you composed them manually...

        • Re: (Score:3, Interesting)

          by TubeSteak (669689)

          Well, atleast Swedish copyright law states explicitly that machine generated things can't be copyrighted because they're not creative.

          Step 1. Machine generate every possibly melody
          Step 2. Register the copyrights in a country which is not Sweden and is a signatory to one or more multi-lateral copyright treaties [wikipedia.org]
          Step 3. Apply for the international copyrights
          Step 4. ????
          Step 5. Call western music complete

      • by madpansy (1410973) on Wednesday July 07, 2010 @01:54AM (#32822562)

        Nice try RIAA. You're telling gullible nerds to generate all possible melodies and publish them, only to come in and sue them for the melodies which are already copyrighted.

      • Re: (Score:3, Interesting)

        by jimicus (737525)

        There's no need.

        By the time you discount all the combinations which sound terrible, you'll have substantially fewer permutations to create. Now, go to any major record company's corporate website and dig out the details for how many songs they claim to hold the copyright to.

        It's more-or-less mathematically impossible to write a song today which doesn't have at least a couple of bars which sound like something else. 99 times out of 100, this is a non-issue (either because your song winds up sounding like s

        • Re: (Score:3, Insightful)

          by shadowrat (1069614)
          How shortsighted. Everyone knows the next generation's music sounds terrible. If you throw away the terrible pieces, you are throwing away your chance to make money off your kids.
    • Re:Reminds me of... (Score:4, Informative)

      by beowulfcluster (603942) on Wednesday July 07, 2010 @01:44AM (#32822486)
      The Verve sampled that obscure version of the track and licenced the use of it so that wasn't unintentional. I think the problem was the Stones representatives thought they ended up using too much of the sample in the song. They realized this only after the song became a success, of course.
    • by deniable (76198)
      A better example would be Vanilla Ice and Queen. If you're too young, move on quickly.
    • Re: (Score:3, Interesting)

      by albyrne5 (893494)
      I'd always felt that the orchestral string riff in Bittersweet Symphony was a rip-off of Grieg's "In the halls of the Mountain King", but I could never get anyone else to hear the similarity. For me it's very very similar. Strange how music works in the brain!
  • The Lyrics (Score:5, Informative)

    by Anthony (4077) * <adavid@adavid.com.au> on Wednesday July 07, 2010 @01:29AM (#32822400) Homepage Journal
    Kookaburra sits in the old gum tree
    Merry merry king of the bush is he
    Laugh kookaburra laugh kookaburra
    Gay you life must be.

    Sung to the flute riff on "Land Down Under"

  • by Lord_of_the_nerf (895604) on Wednesday July 07, 2010 @01:30AM (#32822406)
    .....Men at Work do come from a land down under, where women glow and lawyers plunder.
    • by lollacopter (1758854) on Wednesday July 07, 2010 @10:01AM (#32826472)

      travelling in my tricked out combie
      on a, bullshit trial, bird in a gum tree,
      i met a strange lawyer, he made me nervous
        he took my songs and stole my breakfast

                      and i said oh! you come from a land down under?
                      where you write a song and a man can plunder
                      when you hear does it make you wonder?
                      you mustn't hum, you mustn't play covers

      got sued by a man down under
      (he had), some copyrights and my song he plundered
      i said do you speak(a) my language?
      he just smiled and gave me a legalese sandwich,

                      and i said oh! you come from a land down under?
                      where you write a song and a man can plunder
                      when you hear does it make you wonder?
                      you mustn't hum, you mustn't play covers

      Dying in a den in Bombay
      (with a) slack jaw, and not much to say
      i said to the man "are you trying to exempt me
      from playing my tune in a land of plenty ? "

                      and he said NO! you stole that riff down under
                      the flute solo it makes me wonder
                      these rights we bought to plunder
                      the tunes you make in a land down under

  • by akahige (622549) on Wednesday July 07, 2010 @01:30AM (#32822412)
    ...This has got to be seen as a win for the band. They have to pay royalties back to 2002... which is >20 years since the song was released and became a monster hit. Surely its earnings potential has slacked off some since then. Imagine how bad it would be if they had to come up with royalties back to its heyday...
  • Precedent... (Score:5, Interesting)

    by Anonymous Coward on Wednesday July 07, 2010 @01:33AM (#32822436)

    They wrote the song in 1981, and reissued it in 1982, well before the creator's death and subsquent sale of the song to Larrikin. This may set a very bad precedent, since new owners won't always honour agreements predating their ownership.

  • It should be:

    http://www.abc.net.au/news/stories/2010/07/06/2945781.htm

    Plus, this news did the rounds in Australia months ago - don't know why ABC is reporting it just now.

    • by scdeimos (632778)

      Ah, replying to my own comment 'n' all...

      The case was decided July 2009 (http://www.abc.net.au/news/stories/2009/07/30/2640727.htm), they've only just determined compensation now.

    • Re: (Score:2, Funny)

      by Sulphur (1548251)

      After it made the rounds, it made the squares.

      --

      A mullet is what pattern baldness does to an afro.

  • by bteed (1832400) on Wednesday July 07, 2010 @01:44AM (#32822482)
    Copyright law was originally intended to contribute to the arts by incentivizing creation with a temporary monopoly for the creator. Hands up whoever thinks Ms Sinclair wouldn't have written this song if she knew some company 75 years later weren't able to get a cut of something they had absolutely no part in creating.
    • Re: (Score:3, Insightful)

      by TouchAndGo (1799300)

      We can primarily thank Disney for that

      • by Psaakyrn (838406)

        I think we need to separate Disney the creator and Disney the business corporation...

        • Re: (Score:3, Insightful)

          by gilroy (155262)

          Actually, I've never seen anything justifying such a separation. Old Walt could be pretty ruthless, too.

    • by Asic Eng (193332) on Wednesday July 07, 2010 @03:28AM (#32823026)
      Well it's not that easy, I think. Someone like Christopher Reuel Tolkien (age 85) is still publishing - at that age you are more likely to be interested in earning money for your family or descendents rather than yourself. That in turn might only be possible if you are able to sell or transfer the rights to the work in some way. Still - 25 years after creation should be plenty of time to profit from the work and be a reasonable not to interfere with it becoming part of our culture and derivative works to be created. Of course Men At Work would then no longer earn any royalties on the song either.
      • Re: (Score:3, Interesting)

        by dkf (304284)

        Well it's not that easy, I think. Someone like Christopher Reuel Tolkien (age 85) is still publishing - at that age you are more likely to be interested in earning money for your family or descendents rather than yourself. That in turn might only be possible if you are able to sell or transfer the rights to the work in some way.

        That's why the right needs to be transferrable, even though that leads to some abuses. Still, there's no need for the length of time to be very long; shortening it would encourage copyright holders that want to monetize their efforts to get on with it rather than sitting around gazing at their navels.

        Still - 25 years after creation should be plenty of time to profit from the work and be a reasonable not to interfere with it becoming part of our culture and derivative works to be created.

        Precisely.

        Of course Men At Work would then no longer earn any royalties on the song either.

        They can always record another version, which will have its own copyright. That's just got nothing to do with the copyright term on the original.

      • Re: (Score:3, Insightful)

        by Spad (470073)

        Sorry, no. My children do not have any right to continue to earn money from my work, nor do the executors of my estate or any other 3rd party who might be in my will.

        The absolute maximum that copyright should ever be is the life of the author, though frankly that's far too much as it is. I don't get to write one program and then sit back and earn royalties off it every time someone runs it, I have to keep writing new ones to make a living just like almost every other industry anywhere, so why the hell shoul

      • Re: (Score:3, Insightful)

        by RedWizzard (192002)

        Well it's not that easy, I think. Someone like Christopher Reuel Tolkien (age 85) is still publishing - at that age you are more likely to be interested in earning money for your family or descendents rather than yourself.

        But why should certain professions even have this ability to generate ongoing income for their descendants? Joe Taxi-driver can only invest the money he makes during his lifetime to provide ongoing income. Other artists such as painters and sculptors don't get ongoing income from their work. Why should some authors and entertainers be treated differently?

    • by LordLucless (582312) on Wednesday July 07, 2010 @03:48AM (#32823116)

      It gets worse. She donated her rights to the song to the Libraries Board of South Australia a year before she died. They then sold the rights to a corporation, which is now suing Men at Work.

      So she even tried to donate it to the public good, and its still being used to score free money for people not involved in its creation.

  • I particularly like this report [theaustralian.com.au] about the judgement where "the flute riff made up only 5.8 per cent" of the song. Five point eight percent? You have got to be kidding me!

    It speaks volumes when the legal system must resort to distillation and quantification of art to such spurious accuracy. It reeks of the text book explainging the linear programming of poetry that gets ripped up in Dead Poets Society or the King of Austria as portrayed in Amadeus, "And there are simply too many notes, that's all. Just cut a

    • That wasn't the Emperor, it was one of his ministers. Franz Joseph told Mozart to put the music back. Not that this invalidates your point, mind you, but it's a nit that needed picking.
  • by Solandri (704621) on Wednesday July 07, 2010 @01:52AM (#32822534)
    Trademarks can be lost if they become common generic terms in the language. It happened with Aspirin, Escalator, Zipper, Thermos, and Yo-yo. It almost happened to Kleenex and Xerox, and could happen to Google ("why don't you google it?").

    Perhaps copyright needs a similar exception. If your song/phrase/work becomes an iconic symbol of something else (in this case, Australia), then clearly the benefit to society of not having it protected by copyright outweighs the author's right to profit off it. So it should lose its copyright.
  • The song was written by a Scott.

  • In case anyone is curious, here is the offending song [youtube.com]. The part that I believe caught them starts at 1:55. Hard to know if they had the original song in mind when they wrote it or not.
    • by saiha (665337)

      I would bet that the "creator" got part of his tune from previous songs he heard, its just that we don't have sufficient records from that time.

    • by Cimexus (1355033)

      I think they knew what they were doing. I mean, look at the music video for Land Down Under. At the point where the riff does the part equivalent to 'Kookaburra sits in the old gum tree...', the flautist is, in fact, sitting in a gum tree.

      • Re: (Score:3, Insightful)

        by MichaelSmith (789609)

        Good point though I suppose most people thought "Kookaburra sits in the old gum tree" was written so long ago that a claim was unlikely. I certainly thought so.

    • by Techman83 (949264)
      Well it wasn't in the song originally, it was added later. Load of bollocks either way.
    • Re:The song (Score:5, Insightful)

      by Vintermann (400722) on Wednesday July 07, 2010 @06:43AM (#32824132) Homepage

      Never knew that such a surreal song had such a literal music video. Oh, well.

      They're referencing Kookaburra all right (the flautist actually sits in an old gum tree), but they are not "sampling" it as half the notices about this says. They are also playing it in a minor key, while it's in a major key in the original.

      It's also an 80 years old children's song. With four tones, eleven notes in the disputed part. The world is mad.

  • by saiha (665337) on Wednesday July 07, 2010 @02:13AM (#32822654)

    Clearly this is encouraging more works to be created.

    To be honest I would love to see at least one example of an author who created a culturally significant work pre-1950 who has created another meaningful work in the last 10 years.

  • by Psaakyrn (838406) on Wednesday July 07, 2010 @02:55AM (#32822858)

    http://en.wikipedia.org/wiki/Kookaburra_Sits_in_the_Old_Gum_Tree [wikipedia.org]

    "Marion Sinclair died in 1988"
    "In June 2009, Larrikin Music sued the band Men At Work for copyright infringement, alleging that part of the flute riff of the band's 1981 single "Down Under" was copied from "Kookaburra"."

    The problem is not with copyrights lasting more than the creator, since this was infringed withing the creator's lifespan. The question is why is this brought up only now. Isn't there supposed to be something about having to defend your copyrights or some such?

  • by Centurix (249778) <`moc.liamg' `ta' `xirutnec'> on Wednesday July 07, 2010 @03:02AM (#32822896) Homepage

    Kookaburra sits on electric wire,
    jumping up and down with his pants on fire.

    Laugh Kookaburra,
    laugh Kookaburra
    how hot your pants must be.

    • Re: (Score:3, Funny)

      by thoughtspace (1444717)

      Kookaburra sitting in the old gum tree
      F***ing all the sparrows he can see
      Stop kookaburra
      Stop kookaburra
      That one's got VD ... ah, primary school humour.

  • by Purity Of Essence (1007601) on Wednesday July 07, 2010 @05:22AM (#32823658)

    Colin Hay defends the song saying (emphasis added):

    "It is no surprise that in over 20 years, no one noticed the reference to Kookaburra. There are reasons for this. It was inadvertent, naive, unconscious, and by the time Men At Work recorded the song, it had become unrecognisable," he said.

    http://www.abc.net.au/news/stories/2010/02/05/2811671.htm [abc.net.au]

    Yet in the music video for "Down Under" a flute player is shown playing the quotation while sitting in a gum tree.

    Pure coincidence?

  • by AVryhof (142320) <avryhof@g[ ]b.com ['awa' in gap]> on Wednesday July 07, 2010 @05:29AM (#32823694) Homepage

    When you write your will, put a clause that all of your works are released under an OSS or Public Domain License upon your death.

    There should be a CC License created for this... "In Memory Of"

  • by wynterwynd (265580) on Wednesday July 07, 2010 @08:01AM (#32824810)

    Some real good could come of this. You see, many many mass-produced generic pop songs all use the same 4 chords: G, C, F and A.

    http://www.youtube.com/watch?v=5pidokakU4I [youtube.com] -- This video illustrates the point rather well

    Now the RIAA/ARAA will never run out of artists to sue. They can take every major pop hit of the last 30 years and have them sue each other back and forth in an orgiastic Roman frenzy of subpoenas. Every pop artist will sue every other one, on and on, with the damages spiraling further and further upward until the songs themselves become worth more when not played at all. Problem solved.

    But seriously, come on - ALL art is derivative, music as much as anyone. You experience music and you have a gift for music, your experiences with music and the emotions they trigger in you inspire you to create your own music, you create based on what you've heard because it's what you know. Maybe it's a little different than the songs that inspired you, but usually not on a fundamental level.

    But perhaps we should take this model and run with it. Maybe if we can just get this applied to the Summer Blockbuster or the Romantic Comedy formula movies, we can finally do away with all the terrible, predictable, and rote plotlines that we've been subjected to for years.

  • by FriendlyPrimate (461389) on Wednesday July 07, 2010 @08:30AM (#32825164)
    People seem to be missing a point here. It's been over 30 years since the song 'Down Under' was released, yet Men at Work are still able to collect royalties on it. Cry me a river if the system that allows that to happen also says they need to share their royalties with someone with an even older claim. Sounds like poetic justice to me.
  • by tekrat (242117) on Wednesday July 07, 2010 @08:42AM (#32825324) Homepage Journal

    Will it never end? How many years must something be in the dust and the the lawyers just feed off themselves, sueing everyone who sneezes near them? The song "Down Under" is from the 80's, early 80's I think, we talking almost 30 years! And just now we're getting to the lawsuit?

    Quick, I think Ben Franklin's estate should sue for all the shit he created that everyone uses without paying for. Ben wanted it to all be freely available, but who cares what *he* wanted, he's dead, and now it's in lawyer hands.

    And they aren't thinking about the benefit of all men like Franklin, they are thinking about the benefit of one man. Themself.

    And that's why this world is going to shit.

  • Forget the law (Score:3, Insightful)

    by tthomas48 (180798) on Wednesday July 07, 2010 @09:50AM (#32826308) Homepage

    Shouldn't there be a statute of limitations? This is possibly one of the globally best known Australian songs of all time. The riff is completely obvious, and it's taken them 20 years to get around to suing?

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