Feb 9, 2010

View from the gum tree: riffing on the Down Under decision

I'm just finishing up writing a song.  It's really great.  I've been recording it with a band and we are about to do the final mix.  A major label has already agreed to release it.

I’m just finishing up writing a song.  It’s really great.  I’ve been recording it with a band and we are about to do the final mix.  A major label has already agreed to release it.  We’re all confident it will be a big hit.  I played it for a friend last night and he said, yeah that’s great, love it, but isn’t that chorus a bit like Down Under by Men at Work?  I just smiled and gave him a Vegemite sandwich.

Actually, I hit rewind and had another listen.  I was a bit reluctant to admit it at first, but my friend might be onto something.  I may have unconsciously referenced a bar or two of Down Under.  But I’m not worried.  I doubt Spicks and Specks knows about the song yet.  And Colin Hay and Ron Strykert, the writers of Down Under, seem like nice guys.  It’s not like they are going to sue me or anything, right?

Okay, so I didn’t write a song, I’m just making a point.  After a judge ruled that the writers of the song Down Under had illegally used a riff from the nursery rhyme Kookaburra in their 1982 hit single, Colin Hay, one of the writers, issued a statement that was understandably angry in tone and in which he makes some very good points about the ruling.  For instance:

The copyright of Kookaburra is owned and controlled by Larrikin Music Publishing, more specifically by a man named Norm Lurie. Larrikin Music Publishing is owned by a multi-national corporation called Music Sales. I only mention this as Mr Lurie is always banging on about how he’s the underdog, the little guy. Yet, he is part of a multi-national corporation just like EMI Music Publishing. It’s all about money, make no mistake.

Touché on the point about the copyright holder being a multinational, but that line about it being “all about money” cuts both ways, doesn’t it?  I mean, isn’t that at least in part why Hay is pissed off about the outcome of the case?  Because he might have to cough up a pile of cash to the copyright owner of Kookaburra?  And wouldn’t money be part of the issue if I did in fact release a hit single that was later deemed to be substantially similar to Down Under?  And wouldn’t that be fair enough?

I chose my words carefully above when I said I may have “unconsciously referenced” Down Under in my imaginary song.  That’s exactly what Hay says in his statement defending their use of the tune.  In fact, he acknowledges:

It is indeed true, that Greg Ham, (not a writer of the song) unconsciously referenced two bars of Kookaburra on the flute, during live shows after he joined the band in 1979, and it did end up in the Men At Work recording.

But goes on to note:

What’s interesting to me, is that Mr Lurie is making a claim to share in the copyright of a song, namely Down Under, which was created and existed for at least a year before Men At Work recorded it. I stand by my claim that the two appropriated bars of Kookaburra were always part of the Men At Work “arrangement”, of the already existing work and not the “composition”.

Now, that latter point is obviously a matter for legal interpretation, and unfortunately for Hay, the judge didn’t accept his side’s argument.   But on that first statement, the fact that the Kookaburra riff was “unconsciously referenced”,  well, that may or may not be a legitimate point, though it obviously has no legal standing in this case.  Nor did it in the case involving George Harrison’s song My Sweet Lord when the copyright owners of He’s So Fine alleged (and won) a case of infringement.  And you can see why the law mightn’t accept “unconscious referencing” as an excuse in such a case: apart from the fact that it is too easy to fake it, it doesn’t, it seems to me, materially alter whether a riff, tune, song, whatever, was actually appropriated.  “Unconsciously referenced” strikes me as being a legal par with , “but I didn’t know the speed limit was 60.”

Still, my question is whether Colin Hay would accept “unconscious referencing” as an excuse if someone had indeed used part of one of his songs and claimed it as their own?  I doubt it.  Nor do I think that he should.

Having said that, maybe the Kookaburra riff was “unconsciously referenced” during live shows.   But that is a bit hard to reconcile with Hay’s acknowledgement of the fact that the riff then “did end up in the Men At Work recording”.  I mean, were they still unaware at the recording stage that it “referenced” Kookaburra?   I find it a bit hard to believe, and it doesn’t sound like he is saying that they were.

The most likely thing, I reckon, is that flautist Greg Ham “quoted” it as a clever and witty way of underlining and reinforcing the Australiana vibe of the song. Quoting is an expression from jazz used when a soloist “consciously references” another song, generally during an improvisation.  It is a common device and it is generally understood to be a compliment, not a rip off.   Maybe if they’d used that line of defence and offered some sort of compensation to the Kookaburra people the whole matter could’ve been settled amicably.  Dunno.  It’s all about money, I hear.

Hay’s contention — repeated in different forms by many media outlets — that “no one noticed the reference to Kookaburra”, and the two bars they used were “unrecognisable” is purest nonsense.  I was in music retail when the single and album came out and can distinctly remember people — customers and friends — commenting on the fact that a bit of Kookaburra was in the Men At Work song.  Unrecognisable?  Give me a break.

IF I sound a bit harsh on Hay and co., I’m not trying to be.  But I just don’t buy that it took the Spicks and Specks question before anyone noticed the Kookaburra riff in Down Under and I think, as the laws currently stand, that it is fair enough that Men At Work compensate a valid copyright holder for their use of copyrighted material.

Of course, this particular case occurs in the middle of a world-wide panic amongst music labels over the matter of illegal downloading, and I wonder if the times just did not suit Hay and his co-defenders?

Now, there might be something of a witch-hunt mentality surrounding illegal downloads (though I don’t think many professional musicians think so), and there is certainly a good argument that current copyright laws are badly drawn, have become draconian and exploitative and are inhibiting creative expression, the complete opposite of what they originally designed to do, but it seems to me that even if all that were not the case, there is still a pretty good argument for compensation being paid to the Kookaburra copyright owner.

But that compensation should be fair.  I saw an article in the aftermath of the court case where Norm Lurie suggested he was seeking 40-60% of the royalties from Down Under and that strikes me as insane, even as a bargaining position.  Less than one percent would be reasonable for “his” contribution to the track.

So I feel a degree of sympathy for Colin Hay.  In part this is because I think he’s great musician — I’ve seen his solo shows a bunch of times and his first solo album, in particular, is brilliant — and in part because I think it really would be an injustice if he was forced to cough up 40-60% of the royalties from Down Under.  But in an age where musicians, quite legitimately, worry about their work being stolen in the form of illegal downloads and other sorts of unauthorised transfers, and where major labels have made a point of suing individuals over such infringements, you can hardly expect musicians themselves to be exempt from having their use of copyrighted material questioned.

UPDATE: Some interesting responses in comments, and nothing I really disagree with, or at least, can’t see the point of.  Just a few points.   The fact that someone other than the original composer owns the copyright seems a non-issue to me.  One of the benefits of copyright is being able to sell it as asset or pass it on family members for their benefit, isn’t it?  If you really wanted to limit all claims to the originator of the copyrighted material (as some seem to be suggesting) you would actually be denying that person a benefit by not allowing them to sell it/pass it on. So such a restriction is self-defeating.

There is also a point to make about the underlying reason for copyright, which I don’t think is very well understood.  It isn’t there just to protect a person’s original ideas, or rather, that is only a secondary reason for the laws.  The basic idea, the reason such laws were instituted in the first place, was to provide a wider societal benefit.  The idea was that unless you gave some protection to the creators of original ideas, such people would not bother producing original works and that therefore society itself would suffer. No new songs, no new books etc.

As this article points out (from a US perspective):

The Statute of Anne (1709) was one of the world’s first real copyright laws, and it provided protection to authors “for the Encouragement of Learning,” not because authors had a full property right in their work.

In 1841, Thomas Macaulay gave one of the world’s most famous speeches about copyright, and he explained the principle in more detail. He told his fellow members of the House of Commons, “It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.”

But why should authors be paid—was it because they had the inalienable right to control their own work in perpetuity? No. “It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright.”

Again, the goal is society-wide progress, but copyright should not last “a day longer than is necessary” to secure it.

One does not have to like this. As an author, there are many times when I don’t like this. That’s because, taking this policy to its limit, copyright law only needs to help creators earn a single penny more than the smallest amount of money they need to keep creating. That sounds like a pretty miserable existence, one in which creators might never make much of a living even as they keep a culture vibrant and entertained.

Not that Congress has any intention of doing this, though; in fact, it seems as if legislatures around the world can move copyright in only one direction, toward longer terms—and this despite the tremendous outpouring of worldwide creativity we continue to see. The process is even more bizarre when applied retroactively, since the incentive to create was already enough to produce the works being given additional protection.

Still, this is how US law works (or is supposed to work). Copyright exists for society, and only secondarily for the creator. Complaining about that is one thing; denying that it’s the point of the law is another.

What’s happened over time — and as I suggested in the post, this is where the laws have become draconian and ridiculous — is that the period in which rights are protected, and the associated conditions of use of copyrighted material, have so blown out as to nullify that original desire to benefit society as a whole.  They have turned copyrighted material into a property right to such an extent that the net effect is to stifle creativity.

This is arguably what has happened in the Men At Work case. The law is being applied in a draconian way, in a way that might stifle creativity and thus deprive society of new creative products.

But I am still left wondering if Colin Hay and other musicians would be quite so keen to have the law relaxed if it was their work that was being “unconsciously referenced”. What if someone did produce a song that took two recognisable bars from Down Under? Is that okay?

My basic point is that, in this very specific case (all the examples of classical composers and folk tunes aren’t relevant here), given that the riff from Kookaburra is obviously recognisable and that copyright does exist, then there is nothing wrong with the copyright owner being compensated. (That someone other than the composer owns the copyright is irrelevant and should be irrelevant, as I suggested above.)

However, that compensation should be commensurate with the “referenced” material’s importance to the new song. At best, the referenced riff from Kookaburra is marginal to Down Under and Norm Lurie (or EMI) doesn’t deserve much. Anything over one percent would be excessive.

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20 thoughts on “View from the gum tree: riffing on the Down Under decision

  1. FortnightlyReview.info

    Hi Tim
    Great post. As a follow up we had a conference on this case. We give legal and economic analysis of what the damages should be. Its still a live ongoing issue.

  2. Jack Robertson

    Hiya Tim, oh, no prob re: the delay. I’m such a busted flush of a blog-ranter these days that I’m gratified when anyone takes any notice at all. I hear ya on the writing impulse comments. Could be the trick these days is less about turning the word-tap on than knowing when and how to turn it off, so as not to trickle away too many of them on-line – a talent I have yet to discover.

    S’been great following your various blogs over the years. Interesting time to be producing copy, this. Cheers TD, all the best.

  3. Tim Dunlop

    Thanks for the comments, Jack. Sorry to take a while to respond. Just a small side point, I notice the do-it-bc-they-have-to syndrome with writing too.

    But anyway, I think you hit some really salient points and maybe all I was trying to say was what you said: they both have a legit case.

  4. Jack Robertson

    Tim’s hypothetical beautifully illustrates the insoluble dead-end recording technology has inevitably led us up. The difficulty here is that Hay/Strykert and Larrikan are essentially arguing identical positions. If Tim’s isn’t sufficient, then tweak up your own hypothetical to prove to your own inner muso that both sides have a perfectly valid case – ethically, intellectually, creatively. So then it becomes a simple matter of case-by-case subjectivity: who has the most money to throw at lawyers; how much of a hit is involved; and what sort of judge you get. These episodes will only increase in frequency, cost, length and nit-picking tedium now.

    But think clearly about what it is these guys were really arguing over. It’s not the song, is it, not the riff. It’s the recording of both. It’s not the creativity inherent behind both; it’s the monetising mechanism of that creativity. So what is really ‘on trial’ here is the business model of the recorded music side of the music industry (just as is occurring all over the place, with publishing, graphic art, films, in this info-transitional era) . What is really at stake – what stands to be affected – is the 60, 70 + year dominance of music-making by the recording industry. Ergo, what stands to gain – in my view – is the performance side. Unless you think that music is only about recorded music, you might see this instead as a serious win for creativity and music industry vibrancy; or at least, a glimpse of a more exciting future.

    Those post-Edison guys who came along, and said: ‘Here boys: sing into this can, and I’ll make ya rich beyond ya wildest dreams…’, kicked off a profound shift in our relationship with our music (and that of our listeners, too, and that between producer and listener). Maybe there was plenty to be thankful for, in what these guys did for ‘us’ (if you got a recording contract, that is). But the side of the industry that made the Stones squillionaires (on the back of Muddy Waters et al, don’t forget) is also the side that gave us over-hyped celebrity tweens who dunno how to give to a room; the one hit wonder factories; SAW, Milli Vanilla, lip-syncing on stage, Brittney Circuses, under-songed albums churned out on autopilot by those same now-comatose Corporate Brand Fogies to flog massive industrio-stadium tours and to-the-grave reunions; and above all, money. Money, money, money. Shit-loads of money. Too much money. Crap money, shit-magnet money, drug and booze and groupie and weirdo money, fast money, suit money, lawyer money.

    None of that shit has really been all that good for music, Tim, and certainly not for musical creativity and singular, authentic performance. Let’s all be honest for once, eh. No-one wishes any muso who has a smash hit anything but well; but it’s a bit of sorry state when a case like this, right up there at the big end/big money rarified end of the spectrum somehow becomes this incredibly definitive, to-the-barricades moment for the vast majority of us pumping away to a scatter of pokie nuts in the ‘burbs. Most of us don’t want Silly Money (we can’t all be as rich as Kylie). All you want is an honest pay check for an honest performance – and plenty of regular opportunities for both. Because musicians don’t write songs to sit in an air-conned box and sing into a can, turn songs into shit-magnets for stupid money, turn them into mass-floggable squiggly digital electrons. They write them to sing to people they can see as they sing. People who, equally, prefer to see the musicians sing their songs when they do so.

    We’ve forgotten what music really is: performance.

    Working musicians everywhere are whining endlessly about live music dying, and it’s true. It’s real. You can’t get f**king paying gigs so much anymore. But the real reason – the core reason – is the recording industry. The real reason there are fewer venues, lower fees, tougher laws, meaner bureacracy, fewer muso’s who are proper performers, and above all, ever-smaller audiences…is that we’ve all been educated – duped by record industry money, I reckon – into thinking that music is something that comes out of a stupid little box of some kind, exactly the same way, and every time, you press a button. Rather than a human being’s mouth and fingers, in real time, depending on how things are at that moment.

    So me? I applaud this bullsh*t. I say: yo, bring it on, Lawyer Boys. Yo, bring it on, Suit Girls. Y’morons. Go right ahead: grind your sausage factory side of the industry – the pustulant, coke-f**ked, greedy, opportunist corporate angle – like totally to a halt. Go down this path, you go right ahead, and watch it all clog up in the courts forever. ‘Coz there’s no end to cases that can be brought as we all know, popular culture – all culture – being nothing if not self-referential. So go for it. Make your lawyers richer than Croesus. With luck, every last suity grub who clapped pudgy arms around a working muso and crooned: ‘Son, I’m a-gunna make ya a star…’ will bankrupt themselves, and those lawyers will flip them the bird as they speed away in their Maseratis. And then musicians can get back to earning an honest living from playing live.

    Because whoever argued for ‘copyright’ in that way – it being a requisite incentive for creativity – is dead wrong, I think. Musicians write music because they ain’t got no choice in the matter. And they want to. It’s what they do. It’s how they’re defined, dammit: they make music. Like all those Bluesmen who never saw of cent of anything and didn’t much give a f**k; or certainly not enough to stop making music. ‘Cuz whether or not ‘copyright’ exists, and no matter how much money you might want to throw at the law, one thing in the industry will never, ever change: no-one can plagiarize a live performance.

  5. baal

    Yes, Bryan indeed, thanks for posting the Youtube clip of two Welsh singers performing the original.

    I wonder if the judge knows about that? Good grounds for an appeal, Colin!

  6. Tom Gutteridge

    Yes, Tim. The problem with this decision is that it accepts the argument that the success of Land Down Under was in part due to the Kookaburra quote. As Colin Hay points out the song predates the witty gesture in the arrangement. While you may have noticed the quote, I strongly suspect that 80% of fans and record buyers were oblivious. Another riff would have worked just as well. As others have pointed out, all music relates to previous compositions; without this we have no ongoing culture. That is what is destructive about this decision – that it doesn’t acknowledge the creative context, the historical/cultural place of the quoted source, and the musical role played by the quote in the new piece. Sadly the judge seems to have been aware of some of this; his ruling includes something like that the riff wasn’t the hook of Down Under but only a very small part of the composition, but still found against Hay. This is a bad decision for art. A friend has suggested that what Colin Hay should do is re-record the song minus the offending bars and release it now in the wake of the publicity about this court case. I’d suggest that he replaces the bars with a nicely worked sample of a laughing Kookaburra.

  7. Adam from Save 2! 4!

    My biggest problem in this whole debate lies with the lack of clarity in definition of what constitutes copyright? A single note, a couple of words? What about a particular guitar setting? There’s an advertisement on Adelaide TV for the Brickworks Market that uses the Flintstones tune – only they have deliberately changed the key of the song and a couple of notes. Is this no longer a breach of copyright? It’s clearly still the same tune.

    I’ve written a somewhat facetious article on the debate on the Adelaide music website Save 2! 4! to try and highlight how the lack of clarity makes any definitive legal ruling a farce.


  8. Johnfromplanetearth

    It is without doubt the most ridiculous decision ever handed down in any court of law in this country (and there has been a lot of them) Justice Peter Jacobson has made a huge error here, there is an old saying in the music industry. This is a chord. This is another. This is a third. Now go form a band. Of course now you have to add “just don’t write a song” because according to Justice Jacobson every song ever written will be derivitive of another. Delete the Beatles, The Stones and Led Zeppelin. Please all go and check out the similarity of Bruce Springsteen’s song from his most recent album ‘Outlaw Pete’ it is the chorus of Kiss I Was Made For Loving You! Not a lawsuit in sight over that one, while your at it. Check out the similarity of Coldplays’ Viva La Vida to Joe Satriani’s ‘If I Could Fly’. This is a BS decision and I hope Colin Hay fights this to the end. Vultures!

  9. Malcolm Street

    Had the claim been made by the original author at the time the song was released I could have understood it. But nearly thirty years after release and not by the author? And would it have been launched had Spicks and Specs not publicised the connection? (IOW the plaintiff didn’t even find the alleged infringement himself). Some greedy opportunistic sod abusing the legal system and yes the extent of damages claimed are outrageous.

    Re. older composers. Handel would have been sued into oblivion – he ripped off riffs (including “The Arrival of the Queen of Sheba”, hat tip to Telemann) right, left and centre from all over the Baroque world. And how about the minefield of Blues?

  10. edwin coleman

    The question that this ludicrous decision should raise is why someone like Lurie should be able to buy the rights at all; I agree with some forms of copyright to protect creators, but why should they be transferable like used cars?

  11. Bob the builder

    What for? What loss has the copyright incurred that needs compensation?
    As noted, the original composer is long dead (though was not when the song came out and didn’t seem to mind); the great Larrikin records has long since been taken over by the big boys; and there are a number of folk songs that seem VERY similar to Kookaburra (see comment above by Bryan for one example).
    This is a disgusting, stifling, stupid decision – a theft of art to make unjust profit is one thing, but drawing on part of your cultural heritage to create something new is something completely different.
    Filthy lucre!

  12. Ozzie the Aussie

    I agree Tim, anything over 1% is a travesty, given that the first four notes are the same and the last note resolves back to the first you could say in essence they are being sued for five notes. Still George Harrison was sued for three. Lets see what the payout is?

    Being a working muso, I come across so many people who regurgitate the riffs of their heroes in improvised solos, I do myself all the time. So it comes as no surprise that if people go on to record, that they don’t just stop doing this. Would Jet have been so popular if they did not sound like the Beatles doing ACDC ?

    For anyone who has not heard the story before, when Sting dropped into the studio to lay down some backing vocals for Dire Straits’ “Money for Nothing”, he toned in the now familiar opening “I want my MTV”

    I have sung this song a hundreds of times on stage and I had no idea that line was sung to the identical melody to the verse of the Police song “Don’t Stand So Close to Me”. But Stings record company sure did and demanded co-writing credits and royalties.

    At least the good Mr Sumner had the decency to be embarrassed about the whole thing.

    Moneymen of course don’t write music. You need a soul.

  13. Joshua Crothers

    Is there not a statute of limitations on this kind of thing? It seems a bit ridiculous that they should be able to sue decades later

  14. baal

    Robin makes a good point. How many pop songs, especially ‘folk’ songs of the kind promoted by Larrikin, have filched age old Anglo-Celtic melodies, themselves used over and over by different ‘composers’ for centuries. Kookaburra is no excxeption. I’ve heard it’s an old Welsh folk tune. Well it would be wouldn’t it? Most of our music is old stuff revamped. Who ‘wrote’ Mull of Kintyre? More often that not ‘original’ Aussie folk songs have been sung to the same tune with different words. That’s the tradition. The music provides a doggerel platform for the ingenuity of the words. The same is true for country (and western) music and any number of more contemporary pop songs rely on vestiges of the old Irish chord structure at the core.

    I remember listening to the Triple Jay 100 one year (1990 maybe) and noticing that almost every one was based on Irish music. The pop inflexion (of the day) was what mattered to the fans but the real work of finding and organising the chords and creating the traditional form had been done centuries before. Judging by the drift of letter writers to the papers on the subject of Down Under there is little support for Larrikin (like me many of them see little obvious resemblance between the flute riff and the Kookaburra tune anyway – are they only alike because they were reduced and played in a simplified form for the benefit of his honour’s ears?) Colin Hay should appeal. He’d get a lot of support. The concept of ownership of the creative copyright of such a tune is a corrupt and corrupting influence which actually does more harm to the concept of intellectual property than outright theft.

  15. Damo

    I vaguely agree with the previous two comments. The intention of copyright laws – as far as I’m aware – was to protect the work of original artists and their estate. When one becomes a ‘copyright owner’ and such ownership is a commodity, these laws are a hindrance to creativity. They clearly need to be changed.

  16. CID

    I understand the point you’re trying to make re illegal downloads, and it’s sadly valid. But I also agree with Colin Hay that this is a shameless grab for money. Perhaps there should be a statute on these sorts of matters.

    Could not agree more that 40-60% is insane, I would put it at 0.1%.

    Feel for Colin, having met him I can say that he’s a lovely bloke who really is all about the music.

  17. Robin

    I have sympathy with your argument but I do not have any for the copyright owner. They bought the rights to Kookburra long after Down Under was released. What gives them the right to demand full compensation? Surely it should be the original owner who gets the major part of the compensation and the current owners only get the rest from when they bought the copyright.

    In addition, this makes a lot of music very questionable. For example, Beethoven’s 6th is a pastiche of many folk songs he heard within Germany. Therefore, should I, for example, gain the copyright to those songs then be able to sue every media company in the world who has ever gained from recording the 6th? That’s just plain absurd because I shouldn’t be able to do that.

    I remember one teacher I had when studying music (to AMusA) stating that it had been estimated that all possible variations of the 12 note pentatonic scale had been achieved and that all new music was therefore just a rehash of something already written. Personally I found that dark and depressing as I feel that music is a statement of the culture it is created in and irrespective of newness, it is the statement at that time which to me is more important. I for one have used themes from Telemann, Vivaldi and Bach to name just a few within folk recordings, only a bar here and there and then variations upon those. Does that make me liable as well?

    No, for me the current owner of Kookaburra stands condemned as a greedy and opportunistic sod and it is indeed a sad day that such actions are legally allowable.

  18. Edward Thompson

    Well seeing as the woman who wrote the song has been dead for over two decades, the ‘little guy’ is certainly bunging it on a bit strong.

    The state of copyright law in Australia is ridiculous as it stands.

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