“Down Under” is one of the few songs that makes me genuinely happy when I hear it. Larrikin should forfeit any damages on account of them being utterly incompetent.
If there’s one thing that really gets me irate, its pedantic peasants who use exploit the law to get money from deserving artists. Even more so when its allowed even through steaming, utter incompetence and affects music or artists that I actually like.
The song “Down Under”, released by Australian rock band Men At Work in 1981 has become something of an unofficial national anthem for Australia, having reached the number one slot around the world and appearing in countless adverts, TV shows and movies as an almost totemistic musical reference to Australia. But now the band, and composer Colin Hay, face a ruling and damages from publishing company Larrikin Music, on the grounds that a single flute riff used in the song references a piece of Australian folk music to which they hold the publishing rights.
The song in question is the children’s rhyme “Kookaburra sits in the Old Gum Tree”, and was written by MarionSinclair in 1934, as part of a competition run by the Girl Guides in Victoria. Marion Sinclair passed away in 1988 and Larrikin music acquired the rights to the song in 1989. In June 2009, following an episode of Australian quiz show Spicks and Specks where a similarity between the 2 tunes was pointed out, Larrikin brought a case of copyright infringement against Men at Work claiming between 40% and 60% damages from Men at Work’s earnings from Down Under. On February 4, 2010, the judge ruled that Larrikin’s copyright had indeed been infringe as it reproduced a “significant proportion” of the Kookaburra, but the damages to be paid have not, at the time of writing been decided.
If you’re not familiar with the 2 songs, you can hear Kookaburra being sung here:
and of course Men At Work’s “Down Under” sounds like this. The “offending” flute riff occurs at about 50 seconds in.
Understandably, this has generated a great deal of expression of public opinion, with almost all of it favouring Men At Work over Larrikin’s claims. It raises a lot of questions and fears for musicians; how certain do you need to be that an instrumental break, section of lyrics or part of a riff won’t land you up in court? How small a part constitutes a “significant proportion”?
The judge has made his decision however, and decreed that Men At Work had infringed copyright. However, I would certainly contest the amount that Larrikin are claiming for on the following basis:
- Firstly, Larrikin acquired copyright in 1989. Who held copyright prior to that? Its likely that, if any copyright was held, it was held by the Girl Guides Association under the terms of the competition.
- If no rights were held when the “Down Under” was first released in 1979, then the band have not infringed copyrighted material. even though a judge has rules that Larrikin has rights, they should not be backdatable since at the time of writing the song could easily have been public domain.
- Its also possible that the song “Kookaburra” was not copyrighted during the time that Men At Work were exposed to it – in other words, they most likely grew up with the song being a piece of public domain folk music. Its almost unprecedented for a piece of music or other works NOT to be copyrighted when it is first written or released, let alone some 50 years after the event. There is no reason for Men At Work to have been aware of its change of copyright status, even if it had been copyrighted. Since the terms of song releases include a clause along the lines of “Not knowingly infringing other copyrighted others’ works”, then clearly, even though consciously referencing a line Kookaburra, they were not knowingly infringing an actual copyright.
- Why shouldn’t a song about Australia reference a piece of Australian cultural music, if no copyright is known to be affected?
But surely the most damning argument against Larrikin’s case is that it took them 28 years after the song’s release to notice. Now, Larrikin are a publisher. It is their job to license the use of music to which they own the rights. Surely they should have spotted it straight away. The song was after all, a number one hit… I mean, if the similarities are that great that it qualifies for a 60/40, split, you’d assume that they would have spotted it immediately. But they didn’t even spot it – it was pointed out on a TV quiz show! In the video, he even plays the flute riff while sat in an old gum tree! How rubbish do you have to be not to pick up on all that?
And it was Larrikin’s duty to do so in a timely way. If they had been vaguely competent, they should have brought the case against Men At Work sooner, made them aware of the copyright infringement and given them an opportunity to either license the excerpt, or to re-release the single with the offending portion removed. To wait this long and then claim for back-dated damages could make it seem like deliberate neglect, or in fact intentional to allow the Men at Work single to accrue a larger amount of royalties before suing.
Its unlikely than Men At Work will get away without having to pay anything, but hopefully the ruling judge will see that the split is completely out of proportion. But as songwriters, it could well usher in a new era of concerns about what you’re writing.
If you feel so inclined I did come across a Facebook group supporting the band.