Saturday, July 10, 2010

"Men at Work" on the impact of being found copyists

"Men at Work" were nailed for copying from "Kookaburra Sits in the Old Gum Tree" in their song "Down Under." The Guardian had text about a recent decision in the case:

On Tuesday [6 July 2010], 21 years after Down Under was recorded, judge Peter Jacobson ruled the distinctive flute part had been copied from the Girl Guides campfire tune Kookaburra Sits in the Old Gum Tree. They must now pay back royalties starting from 2002, when a statute of limitations begins.

Ham still denies that the campfire classic had any impact on his playing. "I was looking for something that sounded Australiana – that's what came out," he said. "It was never Kookaburra Sits in the Old Gum Tree ... no one detected [the resemblance] – I didn't detect it and I played the fucking thing."

"Music's always been about referring to what's already in our culture," he insisted. Not only has Kookaburra now milked one of the flautist's main cash cows, but Ham complained that it has taken over the legacy of Down Under. "It will be the way the song is remembered and I hate that," he said. "I'm terribly disappointed that it's the way I'm going to be remembered – for copying something."

Previous IPBiz post:

Men at Work's "Down Under" stolen from Australian teacher

A post on soulshine evoked the concept of "common sense" found in KSR v. Teleflex:

All that can be hoped for is for common sense to prevail. Will the courts find a way to treat music copyright in a common sense manner? Maybe...but probably not. Common sense, isn't, strictly speaking, legal. What is common sense to the entire planet might not be common sense to the Larrikin Music Publishing company. The courts will always rule by the letter of the law, and the letter of the law will never be able to effectively describe music, let alone silence or flute riffs from a children's song. And so we await the next the case of sketchy plagiarism...and the way things are going, we probably won't be leaving the porch light on for too long.

The US Supreme Court should take note: Common sense, isn't, strictly speaking, legal.

The origin of this lawsuit is of interest:

The noticeably late lawsuit was filed after a 2007 Australian quiz show, Spicks and Specks, asked a contestant to guess what children's song "Down Under" contained

Newsblog reported:

Although EMI are appealing the original ruling - partly by claiming the use of a little bit of the 'Kookaburra' melody in 'Down Under' was at most a "tribute" to the folk song, and partly by again disputing Larrikin's ownership of it - it was ruled earlier this week that EMI and 'Down Under' writers Colin Hay and Ron Strykert (who in turn pay Ham a small royalty) will have to give Larrikin 5% of all money generated by the song since 2002, and 5% of all future royalties.


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