AU Band Men At Work Owes Royalties On 'Kookaburra' 371
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!"
1934 (Score:5, Insightful)
Fuck, is the guy who wrote this even still alive?
Oh right, copyright law is written for zombies.
Re:1934 (Score:5, Funny)
Re:1934 (Score:5, Informative)
Owned by Warner Music Group now though (Score:5, Insightful)
Strange the Larrikin Wikimedia page [wikimedia.org] does not mention it, but it is now a Warner Music Group [wikimedia.org] holding (bought by Festival Records, swallowed by Warner Music Australasia).
The *IAA's successfully bought off the Aussie politicians [google.com] in full public view, it is only natural that they get to recuperate that "investment" in Aussie law changes. Bad thing for Australia is: The carrot they offered in return has turned out to be a dud [wikimedia.org] - those silly Aussie politicians sold out for little more than shiny trinkets of no value.
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Yes, it's still wrong.
"Recoup" is a transitive verb, "recuperate" is intransitive. You can't "recuperate" losses or an investment or anything.
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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)
Re:1934 (Score:5, Insightful)
Unfortunately "artists" provide their own reasons for us to want them dead.. often: nagging about copyright.
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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.
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Copyright law has stated that phonorecords are "works for hire" since the 1950s. The way around the law (and how musicians I know do it) is to have your own record label. Sign with Sony and they own your copyrights, unless you have a contract that says Sony gives those rights back. And I can't see any of the greedheads from any of the majors doing that.
The Beatles never held copyright on any of their works. Michael Jackson wound up holding them when the Beatles' label sold them, and Jackson outbid McCartney
Re:1934 (Score:5, Insightful)
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....
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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].
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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)
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.
"To promote the Progress"? Hardly. (Score:3, Insightful)
Apparently the usual defense is to identify some work already in the public domain that also sounds the same.
If authors routinely crib from the public domain instead of creating something original for fear of violating copyright, then copyright is impeding rather than "promot[ing] the Progress of Science and useful Arts", as another country's constitution puts it.
Re:1934 (Score:5, Insightful)
Re:Copyright For Life Of The Creator Only? (Score:5, Insightful)
I'm not saying the system is perfect, but just because a piece of property was created in someone's mind doesn't have to mean that the property suddenly belongs to the planet after an arbitrary time period.
If I owned the copyright to Homer, the Greek, Roman, and Norse tales, and Shakespeare, then I could prevent any new work of narrative from ever being created and sold.
Re: (Score:3, Interesting)
As a composer the only way to do something similar would be teach you offspring how to write music and lyrics. Enabling them to earn a living from the fruits of their own labor. The same as the farmers children would have to do.
Re:Copyright For Life Of The Creator Only? (Score:5, Insightful)
>Whether we like it or not Disney and Paramount and NBC make some decent products.
To answer your question: Disney made the vast majority of it's fortune by borrowing FROM the public domain. The scripts for nearly all their best selling movies were based on older stories on which the copyright had expired (or never existed).
So why should Disney be allowed to BENEFIT from the expiration of the copyright once owned by Hans Christian Anderson and the Brother's Grimm but not be expected to CONTRIBUTE in the same way to the NEXT generation of artists ?
Disney's Kill Bill (Score:4, Interesting)
Disney made the vast majority of it's fortune by borrowing FROM the public domain. The scripts for nearly all their best selling movies were based on older stories on which the copyright had expired (or never existed).
Then I guess Pixar films and Quentin Tarantino's films published through Disney's Miramax brand are your "nearly". But I see your point: Pinocchio and The Jungle Book came out within two years of Collodi's and Kipling's respective copyrights expiring in major markets.
Re:Disney's Kill Bill (Score:5, Interesting)
Are you seriously suggesting that Pixar and Tarantino TOGETHER have made them as much money as Snow White alone ? Not to mention Rapunzel, The hunchback of Notre Dame, Alladin, Tarzan (again - came out within a year after Buroughs original copyright expired).
They have a roughly 80 year history of films made from stories that were in the public domain, not to mention the additional income from toys and other branding. The pixar and Tarantino branches are both only in the last 20 years or so of that period.
Disney has a history of taking works from the public domain and creating profitable works from them - and then claiming copyright on said derivations. I have my doubts about the morality of this but it's certainly legal. The point is though - Disney is so intent on keeping their one truly original creation (Mickey Mouse) under copyright and NOT contributing it to the world as the people they took from did that they have ensured the extension of copyright TWICE to make it happen.
That's not even considering that where it suited them - they have on occasion actually outright stolen stories that were copyrighted creating highly profitable works - simply because the small companies they were stealing from simply could not afford to try and sue them. The lion king is perhaps the worst example of that.
Tit for tat goes the saying. We set up copyright in the way it is so THAT companies like Disney could take it's stories and make movies people love - that's fine. It's NOT fine to refuse to play ball and give you own works BACK to that pool when the time comes so that OTHER companies and people can do the same.
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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:1934 (Score:5, Informative)
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You're right, brain death.
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Re: (Score:3, Informative)
Re: (Score:2, Funny)
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Page not found on link? Here's the bbcnews page (Score:2, Informative)
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)
http://www.abc.net.au/news/stories/2010/07/06/2945781.htm [abc.net.au]
Somewhat bizarrely... (Score:5, Informative)
... the whole court case only happened as a result of a TV panel game, Spicks and Specks (Australian version of Never Mind The Buzzcocks). In how many years of every employee of that Australian music company presumably hearing Down Under played how many hundreds of times, nobody noticed until it came up as a curious fact on the telly...
http://www.news.com.au/entertainment/music/quiz-show-sparks-aussie-anthems-battle/story-e6frfn09-1111117725552 [news.com.au]
Re:Somewhat bizarrely... (Score:5, Funny)
"It really saddens me to think that, in the last years of her life, while Down Under was having huge commercial success, she was in a nursing home, not earning any money from it, and was probably entitled to."
Quoted above, Larrikin Music Publishing managing director Norm Lurie drags through his day, having not been able to help the author, he's had to settle for taking the money for himself, wiping his tears away with her royalties. It's so touching when a music executive is... sad.
Reminds me of... (Score:5, Interesting)
I guess a lot of that goes on, whether intentional or not.
Nine billion names of God (Score:5, Insightful)
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?
Re:Nine billion names of God (Score:5, Interesting)
Well, atleast Swedish copyright law states explicitly that machine generated things can't be copyrighted because they're not creative.
Re: (Score:3, Funny)
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?
Like the movie Avatar (Score:3, Interesting)
> 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.
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Re: (Score:2)
but you claim you composed them manually...
Re: (Score:3, Interesting)
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
Re:Nine billion names of God (Score:5, Insightful)
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)
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
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Re:Reminds me of... (Score:4, Informative)
Re: (Score:2)
Re: (Score:3, Interesting)
The Lyrics (Score:5, Informative)
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"
flute riff (Score:5, Informative)
Re:flute riff (Score:4, Insightful)
That's it? Ten notes, four tones, not even played in the same mode?
Re:flute riff (Score:4, Informative)
It's the same mode, Ionian. The example plays them in the same key - the Kookaburra melody starts on the 5th, the flute on the third. The flute part would effectively be a harmony to the Kookaburra melody.
As much a part of Aussie culture as it is, I'm surprised it isn't recognized as the homage it probably is, conscious or not. Every jazz player ever has been guilty of lifting something at some point in their life, and that's when you have shifting rhythm or different modes to fit what you're playing, and often it's more notes than this. Everyone just nods and winks when that happens.
I'd love to find a transcript of the proceedings, but then I'd probably just save it for a later which never comes. There has to be at least one person at some point who exclaims "you people are so retarded I think you gave me HIV".
Well, in truth..... (Score:5, Funny)
Re:Well, in truth..... (Score:5, Insightful)
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
Even If They Lose the Appeal... (Score:5, Interesting)
Re:Even If They Lose the Appeal... (Score:5, Informative)
Even with only 5% royalties and six years, that's apparently still a six-figure sum [theaustralian.com.au].
Wouldn't have guessed they were still averaging $333K+ a year in royalties. I can see why these aging rockers tend to fight for copyright extensions.
Re:Even If They Lose the Appeal... (Score:5, Informative)
Precedent... (Score:5, Interesting)
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.
BROKEN LINK (Score:2)
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.
Re: (Score:2)
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)
After it made the rounds, it made the squares.
--
A mullet is what pattern baldness does to an afro.
Perversion of the law's intent (Score:5, Insightful)
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We can primarily thank Disney for that
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I think we need to separate Disney the creator and Disney the business corporation...
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Actually, I've never seen anything justifying such a separation. Old Walt could be pretty ruthless, too.
Re:Perversion of the law's intent (Score:4, Insightful)
Re: (Score:3, Interesting)
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)
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)
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?
Re:Perversion of the law's intent (Score:5, Interesting)
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.
Re:Perversion of the law's intent (Score:5, Interesting)
This shows what a great thing the internet is, provided that we defend it. Ten or 20 years ago you had to trust organisations like libraries to take care of donated product. Now you can just slap a GFDL header on the sheet music and post it to wikipedia. Done.
Too many notes! (Score:2)
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
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Perhaps copyright needs to be more like trademarks (Score:5, Insightful)
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.
Re:Perhaps copyright needs to be more like tradema (Score:5, Informative)
Where is this strange world you live where Kleenex, Xerox and Google *almost* became common terms referring to the generic?
Anywhere outside the USA.
I blow my nose with tissues.
I photocopy things with a photocopier.
And I search for things with Bing or Yahoo. I also google for things with Google.
Just a by the dub (Score:2)
The song was written by a Scott.
The song (Score:2)
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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.
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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)
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.
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Re:The song (Score:5, Insightful)
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.
remember the reason for copyright (Score:4, Insightful)
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.
Apparently the ABC owes royalties on it's web site (Score:2)
Page removed?
This is not the wrong you are looking for. (Score:5, Interesting)
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?
All I remember is (Score:3, Funny)
Kookaburra sits on electric wire,
jumping up and down with his pants on fire.
Laugh Kookaburra,
laugh Kookaburra
how hot your pants must be.
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Defense doesn't add up (Score:5, Interesting)
Colin Hay defends the song saying (emphasis added):
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?
Save the world from your family (Score:5, Interesting)
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"
Precedent set, goodbye pop music! (Score:4, Insightful)
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.
Who are we rooting for again? (Score:3, Interesting)
Indians Sue to take back Manhattan (Score:4, Interesting)
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)
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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Because when i was growing up, the tune 'kookaburra sits in an old gum tree' was a staple of my primary school activities. And i'm willing to bet we were singing it without a license. And we all know how brain-dead the recording industries are (Australia's is just as bad, if not worse, than the US's, in some respects.)
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Apparently the Girl Guides owned the rights to the song for 26 years, up until 1968, at which point they were sold or transfered. So you'd have to be more specific about what year you sung the song for slashdot to really know how much you owe these guys.
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Who can it be now? (Score:5, Funny)
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Are you complaining that the copyright is too long or saying his family shouldn't be collecting after death?
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Comment removed (Score:5, Interesting)
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Paraphrasing old gospel hymns, are you? Be careful! In ten years the rights to "Gimme that old time religion" will be retroactively assigned to an African-American Christian orphanage, which will eventually disappear and sell the rights to Warner Music in the process.
Then you will get sued for this comment.
Re:If copyright is forever (Score:4, Insightful)
The The Brothers Grimm, Hans Christian Anderson, and even Aesop want their stories Back.
Yes I am talking to you Disney...
Snow White was made less than 70 years after the death of a Grimm brother (which, under life+70, would have been copyrighted until 1933). 70 years from death of Hans Christian Andersen was 1945! Extended copyright wouldn't have benefited Walt in the early days at all.
Aesop--I think we're safe there, but did the Mouse ever actually use Aesop? (Probably in the short films that I'm too lazy to look up).