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Member since May 2011 · 2475 posts · Location: Brisbane
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Subject: Kookaburra sits on the Men at Work.
I was originally going to title this one "Kookaburra sits in the FUCK YOU FUCK YOU" but that's probably not family friendly.

Now then: for the foreigners in the audience, a kookaburra is the greatest bird that ever lived.  It's a cheeky, colourful kind of kingfisher with a startling, beautiful laugh-like song.  They're friendly, funny, and they have a song written about them.

Written in 1934 (or 1937, depending on who you ask), this song has been very popular among Australian schoolchildren.  Think 'Waltzing Matilda', but sung in elementary schools across the nation.  I sang it as a kid living in rural Victoria in 1979. 

In 1981, Men at Work had their 15 minutes of fame around the world with two songs, one of which was about Australia, and talked about things like Vegemite and drinking so much you throw up (chunder).  Very Australian, and there were eight to ten notes in the middle that sounded quite a bit like the main verses in the Kookaburra song.  An Australian song giving a little hat-tip to another Australian song, how charming! 

The original author, Marion Sinclair, never complained about it (she died in 1988).

In 1990, a subsidiary of the "multinational company Music Sales Group" called Larrikin Music bought the rights to her songs, and twenty years later they've won a lawsuit against the Men at Work for...  Well, theft?  Piracy?  I'm not sure what legal basis they built their suit on, but they won.

The damages aren't yet know, but they asked for 40-60% of every penny that the band made on this song since its release.

I'm not of the opinion that eight to ten notes constitutes any kind of infringement, and I'm certainly not fond of companies that buy the rights to things and then sue anyone who strays anywhere close to their 'property'.  Especially seventy three years after the fact.  These things should not be perpetual!

Anyway, it's disgusting.
BLEARGH
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Member since Oct 2007 · 316 posts
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There's a tradition in American Jazz of quoting other works of music for ironic or humorous purposes. The soloist performing 'Night Bird' might insert two bars of Al Jarreau's 'Mornin' just for the laugh. Of course, that generally happens as part of a live performance and not in a recording.

The suit hasn't been settled yet, has it? There's a bit of legal precedent here whereby Men at Work might be able to wriggle out of any liability, in that a specific number and sequence of notes from the original work have to be present in the new work for it to be legally derivative. The phrasing of the flute segment in the song is such that the Kookaburra quote starts on the third bar, rather than the first. That probably is enough for the sequence to qualify as not derivative.

It's worth looking at the John Fogarty vs. Fantasy Music case as a precedent. In that suit, Fogarty was put in the bizarre position whereby he was accused of plagiarizing from himself. He was able to demonstrate to the court's satisfaction that it was appropriate to play in a particular style, or to evoke a familiar tune, without it being a copyright infringement.
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Member since Nov 2007 · 121 posts
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Isn't the original out of copyright? Stupid, selfish, money-grabbing arseholes. And that's how the judge should see it. But it IS Australia...
"...either stop and think or fuck right off" (TheOutrider)
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Member since Sep 2007 · 176 posts · Location: Kobe, Japan
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What ever happened to the fair use and sampling? Isn't there some rule allowing the use of about 10 seconds of an existing song without committing the heinous crime of copyright infringement?
This does not bode well for alot of electronic artists...
“Be conservative in what you do; be liberal in what you accept from others.” J. Postel
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Member since Oct 2007 · 316 posts
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The problem with fair use is that it needs to be acknowledged. Traditionally it's sufficient to do so in supplementary documentation (liner notes and so forth) but lately the safe bet has been to put in a parenthetical suffix on the song title. If you don't shout your usage with the procedural equivalent of a microphone, it can be argued legally that it's not fair use.
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Member since May 2011 · 2475 posts · Location: Brisbane
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I'm not clear on the legal issue here.  It's not really copyright, since there was no original recording being sampled or copied.  Is it copyright of the musical notes themselves?  What specifically is the infringement here?  None of the news articles have made that clear...
BLEARGH
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Member since Oct 2007 · 316 posts
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The Wikipedia page on the subject has an American bias, but it covers the topic pretty succinctly:

http://en.wikipedia.org/wiki/Musical_plagiarism

Australian law on the subject is mostly similar, though some of the fine details are different. Essentially, using the same melody or sequence of notes as another established and copyrighted work, without acknowledgment or permission, makes you financially liable.
Author name (Administrator) #8
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Member since May 2011 · 2475 posts · Location: Brisbane
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An update to this ridiculous tale was posted on Techdirt today.  Summarized, Men at Work the song's composers and EMI (the label) have to pay 5% of their earnings from this song since 2002 (2 years after Larrikin assumed the rights to it).

I suppose it's great that they only used ten notes in the song, if they'd used twenty, they might be on the hook for 10%.  Since these ten notes only comprise like 1/60th (less than 2%) of the total running time, I wonder how the court arrived at its decision.  What if they'd used twenty different pieces?  Would they have to pay 100% of their earnings?  If they used 40 pieces, would they pay 200%? 

I'm all for not getting ripped off, but to be clear here, we're talking about a holding company suing over a song written seventy years ago by a school teacher.  The person who created the work is not being compensated, this is not a win for a mythical little guy, this is retarded.

From the news.com.au article:

Justice Jacobson said that when calculating the percentage payable he had to look at the weight of "the significance of the bars of Kookaburra to the overall musical qualities of Down Under".
Ah, that explains it, those ten notes are 5% of the ...  wait...  Maybe if you...  Turn it around...  Um...  No, it doesn't explain it.

"Whether the hypothetical bargain is assessed at 1982 or 2002, the percentage interest payable is at the lowest end of the spectrum," he said.

Oh, that's better.  5% was the lowest number he could use.  All this time I've been counting from one.  Two, three and four are silly numbers we never really liked in Australia.
BLEARGH
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Member since Apr 2009 · 59 posts · Location: Bendigo
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Well, given that the original decision was actually 60% before the last appeal was made, I think that 5% is a fairly decent outcome.

I just wonder how a company directly involved in music doesn't understand that it's kind of hard to come up with a string of 10 notes which hasn't been put together in that order before.
I know that if I invent a time machine I'm going to go back in time and patent all scales, that way anyone who makes a song has to pay me. Maybe as much as 5%.
Author name (Administrator) #10
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Member since May 2011 · 2475 posts · Location: Brisbane
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Via Techdirt, news from the UK newspaper The Guardian:

The Australian band Men at Work have lost their final court bid to prove they did not steal the distinctive flute riff of their 1980s hit Down Under from a children's campfire song.

The Australian Supreme Court refused to hear the case, which means the lower court ruling stands.

I'm disgusted by this.  A dozen notes from a 70 year old song were used in a 30 year old song, and no one cared, until a licensing company bought the rights to the original and called the lawyers.  In no reasonable society should this sort of bullshit be allowed.  And five percent?  Twelve notes from one instrument, some three seconds of a three and a half minute song, is worth five percent!?  Preposterous.

Mor interesting, I couldn't find any mention of this on the sites of Australian newspapers.  Why is that?
BLEARGH
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Member since Oct 2007 · 316 posts
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Quote by NFG:
More interesting, I couldn't find any mention of this on the sites of Australian newspapers.  Why is that?

Two things are at work here. Men At Work hasn't really been relevant in the current music industry, Aussie heroes or not. If they're not presently promoting an album or hosting a reality television show, then they won't be on the general media radar. The other, more distressing problem is that songwriting royalties simply aren't relevant to the public, the majority of whom neither benefit from nor are damaged by copyright laws. The creative class is a very small minority, and most of us aren't in a position to gain or lose. The reasoning is, if the longshoreman down the street won't be affected then it's not really news. Worse, that they already reported on the initial lawsuit being filed means that it's not just irrelevant news, but it's irrelevant old news too.
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Member since May 2011 · 2475 posts · Location: Brisbane
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That's very likely the case for most long-gone pop bands, but MaW are Australian icons, up there with Midnight Oil.  They wrote what is one of the most defining Australian songs extant. 

And Australians, much like Americans, love to root for the underdog and love to rage against injustice.  The bigger the target, the bigger the rage. 

At least, that's how I saw it.  I'm sort of wondering how this fails to qualify now.
BLEARGH
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