Kookaburra's

[Chinagraf]

"Kookaburra sits in the old gum tree,
now he has to share his royalty"

What a strange case indeed..

[chris p]

Man oh man - I am so suing Alan Parsons

In 1992 I wrote an instrumental piece, piano, flute and a little backing drums. I view my music creations as being little more than elevator music - nice and inoffensive, totally forgettable. Then in 1993 he releases "Try Anything Once" and there's my piece wrapped up as the orchestral "Re-Jigue" - well, at least its an identical 10 note hook.

And lets not discuss Andrew Lloyd Webber's Phantom of the Opera and the predating little ditty "You Are My Hiding Place".

Mind you, the fact that Colin sometimes sang the "Kookaburra" line in his concerts probably didn't help his case. From today's Daily Tele there may be an appeal.

[Ben M]

Vegemite sue too. :)

[Hybrid88]

Ha, thats wierd 'cause there actually was a bunch of real Kookaburras outside my house yesterday, just would not shut-up for about half an hour.

Maybe they heard about the case and were having a good old laugh at it all, wouldn't blame them...

[no-fi]

Yeah... what a stupid judgement. It's kinda missed the whole point of music, from what i can tell.

And what a bunch of pathetic greedy corporate hacks at larrikin music... can't wait till that crappy company is dead and gone, which I'm sure it will be soon enough if it's going around doing stuff like that.

[Kurt]

What happened?

[Hybrid88]

IMHO - this is just the beginning - very sad day for the Australian music industry.

Exactly what I thought, stupid greedy lawyers should keep out of the music business IMO.

What happened?

Have a read...

http://www.abc.net.au/news/stories/2010/02/04/2809848.htm

http://www.3aw.com.au/blogs/3aw-generic-blog/men-at-work-loses-court-case/20100204-neoh.html

http://www.dailytelegraph.com.au/entertainment/sydney-confidential/kookaburra-case-played-out-in-court/story-e6frewz0-1225791861525 (older article)

[Linear]

um, I'm not in the business of defending lawyers, ~but~ lawyers usually only act on instructions given by their clients.

so really, it's stupid greedy publishers...

i think it's fair enough. the flute riff is a blatent ripoff, they'd be lying if they said it wasn't. why not just fess up at the time, cut a deal ~before~ your album gets huge and pay the poor lady who wrote it her fair share? it sh~ts me that the publisher (who probably bought it from her estate for peanuts) suddenly has a windfall from doing nothing but watching spicks and specks and instructing mr simpson to take it to court.

still, if you use someone else's hook/lick/riff/sample and it's blatent and makes the song, then pay them their dues. you'd feel the same if someone stole your hard work...

just my 2c...

Chris

[Kurt]

Oh dear.

[Ausrock]

Chris,

Re the "composer" of Kookaburra and it's origins...............there's still the, to my knowledge unanswered allegation, that the riff comes from an even older Welsh tune...................so who the F**k really copied from whom?

It's terribly easy to innocently come up with a melody line/riff, only to realise sometime later that it's similar or identical to something "composed" before............our minds unknowingly store ridiculous amounts of seemingly useless/irrelvant information only to have it occasionally come to the surface when least expected..............I seriously suspect this is what may have happened with the flute riff in this case..............a riff which initially was not deliberately copied. FFS, I learnt Kookaburra decades ago in school and I never associated it with "Down Under".

This whole thing is a sad and sorry example of where the industry is currently at.

[Kurt]

Even if it was a deliberate "tribute", which seems likely given that ol'mate is sitting in a tree playing the flute in the film clip, is a tribute or nod to another song ripping it off?

Given the fact that the lady who wrote Kookaburra (and ripped off the tune apparently) didn't sue them at the time I think it patently ridiculous that someone who bought the rights a decade after the release of another song containing the homage can then sue over it (another decade later).

Originally copyright lasted 7 years, now we're up to 70, with a push for 120 or perpetual. Lunacy.

[Linear]

given that the general tone of this board is to support 'the underdog', i'm amused when you all jump on the bandwagon and complain about how unfair the verdict was.

let's not forget how much money men at work made from sales of this song - a fortune in anyone's book. and i've listened to both versions - it is a blatent ripoff. they have profited from someone else's work. why shouldn't they be sued?

i would like to think that if I wrote something, that it couldn't be taken, blatantly used in another song that they use to go on and make millions. there is a precedent to this case as well, with the verve paying nearly 100% of their publishing royalties to the rolling stones for bittersweet symphony (and what they used was an orchestral cover anyway).

larrikin, buying the publishing rights to the song, have as much right as Marion Sinclair did to compensation. in my eyes, they're the underdog and the 'big guys' are men at work.

are you saying that if you rip someone's work off ~and they don't notice~, then it makes it OK? maybe she didn't listen to men at work? so copyright should only extend so far as people noticing?

also as to whether or not she ripped off someone else - well that's not part of the discussion and unproven - heresay is far too easy to pull out when things don't go your way.

Chris

[ChrisW]

Gotta agree with Chris.
The band have now admitted using the melody - which pretty much ends any unfairness argument IMO.
You can't blame an old lady for not suing (around the time 'Down Under' was released).
And this publisher is most definitely small beer compared to the major publishing houses, no doubt one of which holds the rights to 'Land Down Under'.

As a writer myself I really don't think copyright is to blame. You just don't copy, quote or sample other people's work, but if you do, you clear it with them before you release your record and the money starts rolling in.

It's funny that a local writer who never made much money, and a smallish local publisher are being slammed in order to defend a massive hit record on a major label with a major publisher attached.

[no-fi]

the point is, it's a couple of notes in a 4 second space of time. and if that pattern of notes is therefore owned by larrikin music in perpetuity, then no-one can ever use them again without paying them money. I call bullshit. That's not rewarding creativity, it's plundering the open field that was unmarked before publishing and recording became a part of music, and then locking everything out for all future generations.

Also, you'd think if they were using the kookaburra theme to make their song famous, then they might have been a bit more obvious about it, seeing as nobody ever noticed for 20 years.

And on top of this, how can anyone justify claiming the use of a melody from something like kookaburra making this song an international hit?? the idea was it's something people know and locked onto... so it has to be something people should already know.. this is the case in Australia maybe - but who ever heard of the original kookaburra melody overseas?

[prequalizer]

Gotta agree with Chris.
The band have now admitted using the melody - which pretty much ends any unfairness argument IMO.
You can't blame an old lady for not suing (around the time 'Down Under' was released).
And this publisher is most definitely small beer compared to the major publishing houses, no doubt one of which holds the rights to 'Land Down Under'.

As a writer myself I really don't think copyright is to blame. You just don't copy, quote or sample other people's work, but if you do, you clear it with them before you release your record and the money starts rolling in.

It's funny that a local writer who never made much money, and a smallish local publisher are being slammed in order to defend a massive hit record on a major label with a major publisher attached.

Most publishers will not allow it unless they get paid upfront large. Especially for Hip hop or Sampling artists.

[musikwerks]

I think it's a bogus decision. How many songs use the same chord progression? It has set a dangerous precedent for writers in our industry. No songs, no recording industry. Personally, I think it's quite likely a massive coincidence which Colin Hay noticed after the fact, hence his adding of the Kookaburra lyrics later down the line. There's plenty of precedent in international coyright law to have this claim thrown out. Coldplay vs Satriani comes to mind and that was a serious rip off, not just one line.

If I was Hay, I'd be going after Spicks and Specks. But it's going to cost zillions to defend/appeal/deny and technically it's not his problem, it's EMI's. But still....smells like a money grabbing attempt from Larrikin. Would they have pursued it if the song hadn't earned millions? I doubt it.

Edit: How old is Kookaburra? How long has the writer been deceased? If more than 50 years it becomes public domain.

[Hybrid88]

I don't have quite so much of a problem if the suing composer is still alive but in this case she's not. I mean that really is the bullshit of this case in that some company that's got sweet FA to do with the actual creation of the song, can so long after the original creator is pushing up daisies so to speak, and get a bloody great big windfall - what ever next, people buying up the rights of songs to see if they can make a profit?!

As an amateur modern composer myself I'd also like to say that there is still a limited amount of rhythms/notes/syncopations that in a 4/4 time signiture are even possible to make a pleasing melody, it's not infinite - though in this case it seems it was meant to be a reference, but really is it possible for a court/lawyer/judge to have a friggin clue if they had it their minds when they wrote the song to copy the melody or not? no-one can prove that unless the 2nd composer admits it, that's why this verdict stinks.

[Linear]

for a start, it's more than just a chord progression. it's an actual passage of music, identifiable enough to make it recognisable (hence it becoming an issue in the first place). i don't see why it's 'dangerous' for writers - if anything it helps protect writers against people stealing ideas and profiting from them. Coincidence? I don't think so, particularly if the band has later admitted to it (meaning they knew all along where the passage came from).

What exactly would you 'go after' spicks and specks for? recognition of copyright infringement through a gameshow? please.

So copyright infringement happens all the time, and of course in most cases there's no point pursuing because no-one has made any worthwhile money from it. But in this case, they (men and work & EMI) had so it was worth the thousands in lawyer time/court costs. Like lawyers always say, there's no point taking someone to court if they have no money - gain judgement and what are you going to do? take their Datsun?

Marion died sometime in the 80's, so it wont' be public domain until at least 2050.

And Richard, people have been buying and selling songs for profit for at least a hundred years. That's the business model behind a publisher. And if you've bought (and hence own) the song, then you have every right to pursue breaches of copyright as far as your legal budget will allow.

As for proving it in court - it wasn't just lawyers and judges, it was musicologists and 'experts' in the field brought in to give their opinions on song structures etc. proving 'beyond reasonable doubt' is the usual standard, courts rarely decide purely on someone admitting truth... fairly fundamental I would have thought.

Chris

[Hybrid88]

..And Richard, people have been buying and selling songs for profit for at least a hundred years. That's the business model behind a publisher...

Well, I wouldn't know I'm only a hobbyist producer - still seems a bit wrong, but then we do live in a materialist world.

As for proving it in court - it wasn't just lawyers and judges, it was musicologists and 'experts' in the field brought in to give their opinions on song structures etc. proving 'beyond reasonable doubt' is the usual standard...

And what did they say? That both riffs sound the same? - I could've told 'em that.

...courts rarely decide purely on someone admitting truth... fairly fundamental I would have thought.

I didn't say they did, I actually do understand the fundamentals of court proceedings, my point was that it still doesn't change the fact that no-one but the 2nd composer truly knows if the riff was intentionally copied from the 1st or just the same riff made up by the second guy, it happens, any muso/producer will tell you the same. I've made up progressions/melodies, that I've made originally, and then I'll be listening to some track months later and hear a very similar (sometimes the same) melody, and I'm not the only one.

As far as I'm concerned the court didn't prove that the second riff was a copy of the first, just that the two riffs are the same - there is a difference.

- Though in this case I will say that from what I've read, the riff does seem to have been a direct reference to the Kookaburra song.

Really though, at the end of the day, how is this helping the art of music - will artists will stop making music for fear of being sued for using the same chord progression/melody as someone else? I shudder to think of how this kind of legal s@#t will affect Mash-Up artists.

[Sheer Noise]

Stephen Digby's (music copyright lawyer's) response: "It is certainly an identifiable and discernable piece within the song, but my gut feel was that it was probably not sufficiently substantial in the song as a whole"

I found Colin Hay's statement interesting as well:

http://www.heraldsun.com.au/news/men-at ... 5826917098

How many notes the same constitutes a rip-off... how much money do you have to make before it matters... next time someone says to me "hey, great song.... sounds a bit like ######" I'm going to think twice before I send it to my publisher. Sad state of affairs.

Dave

[rick]

might just be the first thing i have ever heard of that the boss of larrikan actually ever acheived !

i dont really know what to make of it
its a money grab for sure - maybe its a just thing
i dunno - i dont know any of the facts

[Hybrid88]

Well, the worst thing now is that, assuming they don't appeal, this will now set a precedent for all cases like it to come in Australia - that's the truly sad part. Makes it easier for any old twit who gets the bright idea to do the same.

[Ausrock]

'Twas interesting to note the poll result on the HeraldSun page......:

"This poll is closed.

Is Down Under a rip-off of Kookaburra Sits in the Old Gum Tree?
Yes 9.1% (169 votes)
No 90.9% (1678 votes)
Total votes: 1847"


And to Linear's comment.........."given that the general tone of this board is to support 'the underdog', i'm amused when you all jump on the bandwagon and complain about how unfair the verdict was." ..........just maybe, the "popular" sentiment being expressed has nothing to do underdogs, etc., and more to do with plain bloody common sense.

[ChrisW]

the point is, it's a couple of notes in a 4 second space of time. and if that pattern of notes is therefore owned by larrikin music in perpetuity, then no-one can ever use them again without paying them money.

Sorry, that's a gross misrepresentation of the reality.

[ChrisW]

Most publishers will not allow it unless they get paid upfront large.

It depends what you call 'large'.

I think the fees are small. Most sampled music is happily cleared and used legally these days.
It's entirely wrong to suggest otherwise.

[ChrisW]

Well, the worst thing now is that, assuming they don't appeal, this will now set a precedent for all cases like it to come in Australia -

Nothing will change.
The precedent is already set - if you quote someone else's composition in your own (as Hay now freely admits - big point that) you need to clear it with the original composer before releasing.
The silly thing is, if you clear it first the fee is often going to be tiny.
Who knew 'Land Down Under' was going to be the massive hit it was?

And it might be a sad fact, but song ownership is bought and sold.
Larrakin bought the song and they will seek income from that purchase.

If I buy your old car, should I then let anyone on my street drive it, just because I wasn't the original owner?

[heathen]

I remember way way back in year 8 at high school our music teacher picked it, the class was doing some creative listening and chatting in general about stuff and she puts down under on the tape player and asked if anyone could pick the "other" song used. Well as soon as she told us what it was we were all "oh yeah how cool we hear it now".

Anyway I always thought kookaburra was a song that kids sing sitting around a campfire. Are larrikin going to sue the girl guides and the scouts everytime they have a public sing song and sing kookaburra?

The thing is it is just a few notes in a bigger passage, the six or seven notes preceding the kookaburra ones sort of blend it into a longer passage. How anyone can own several notes in a certain very short sequence is beyond me, if they ripped the whole tune then yeah I can understand, but they did'nt.

All I can say is it's Un-Australian to sue for something so minor. Anyway probably the only way they could make a buck at the moment.

[Chris H]

...............................

Anyway I always thought kookaburra was a song that kids sing sitting around a campfire. Are larrikin going to sue the girl guides and the scouts everytime they have a public sing song and sing kookaburra?

The thing is it is just a few notes in a bigger passage, the six or seven notes preceding the kookaburra ones sort of blend it into a longer passage. How anyone can own several notes in a certain very short sequence is beyond me, if they ripped the whole tune then yeah I can understand, but they did'nt.

All I can say is it's Un-Australian to sue for something so minor. Anyway probably the only way they could make a buck at the moment.

Pretty well sums up my take on this, as far as who the the underdog is, in this case Colin and the band etc, as i think many Australians would view the legal decision as an injustice, a money grab and another example of a decline in Australian values under the influence of American values.

[lonearranger]

The full details of the case so far are here -

http://www.austlii.edu.au/cgi-bin/sinod ... 0at%20work

The interesting bits are the final ruling in paragraphps 339 to 341. Esp these bits

[quote]339: Nevertheless, I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the “hookâ€

[jkhuri44]

i would love to see what would happen if we had music lawyers from 1700-1900.

classical music would have a very colourful history...