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How silly, how stupid, was the verdict in a court case about Men at Work using one melodic line from a song - only three seconds long - from Kookaburra sits on an old gum tree. (I wrote about the upcoming court case a few weeks ago.) Surely it was a reference, a tribute, an Oz moment. Now millions of dollars has to go to some copyright holder of what has been considered a folk children's song. When Qantas used a children's choir to sing it, there was no court case! The courts come out with a silly decision it seems. The words weren't even sung, only a riff on a flute with twelve notes! A sensible judgment would have decided that a small fine would cover the few seconds of adapted melodic line, not 60% of royalties! Was the intent of the Men at Work song-writer to deliberately steal a song, or was it just a reference to an Oz 'iconic' kids' song? Legalism gone mad. Ten seconds of a four minute song!
From the ABC online this evening:
Kookaburra riff ripped off, finds courtSarah Dingle reported this story on Thursday, February 4, 2010 12:14:00
ELEANOR HALL: Now to another copyright case and in this one the kookaburra has had the last laugh.
Larrikin Music accused the band Men at Work of stealing their riff from the children's song Kookaburra Sits in the Old Gum Tree.
The record companies EMI and Sony BMG disputed the claim but today the Federal Court ruled in Larrikin's favour, as Sarah Dingle reports.
(Sound of children singing Kookaburra Sits in the Old Gum Tree)
SARAH DINGLE: It's a song heard in Australian primary schools across the country.
Written in 1934 by a Melbourne teacher Marion Sinclair for a Girl Guides jamboree, Kookaburra Sits in the Old Gum Tree is still a kids' favourite.
But it's the use of the same melody in this song:
(excerpt from Down Under by Men at Work)
...aimed at adults which saw both songs in court.
The kookaburra song left victorious, Larrikin Music's lawyer Adam Simpson welcomed his win saying it was yet to be decided what percentage of earnings from the song they'd be seeking.
ADAM SIMPSON: It depends. I mean anything from what we have claimed which is between 40 and 60 and what they suggest which is considerably less.
SARAH DINGLE: John Anderson from EMI was not saying much outside court except that the company would have to review what he called a complex judgement.
When asked if he expected significant damages to be awarded he gave this brief answer:
JOHN ANDERSON: Not necessarily.
SARAH DINGLE: And he says it's not yet clear whether Men at Work would lose their right to perform the song.
(Excerpt from Down Under by Men at Work)
The judge also ruled that a Qantas advertisement which used a small similar section of the riff was not in breach of copyright laws. EMI said it was pleased with this decision but Larrikin Music's lawyer Adam Simpson wasn't ruling out further legal action.
ADAM SIMPSON: In the Qantas ad there was only, there was a smaller part of the song and so the judge felt that that wasn't enough to qualify as an infringement of copyright. But we'll be giving that some more thought.
STEPHEN DIGBY: I have to say what it does show is just how difficult these sorts of cases can be.
SARAH DINGLE: Stephen Digby is a lawyer specialising in music copyright. He says he's surprised by the court's decision.
STEPHEN DIGBY: I think it could have gone either way but my initial reaction and also looking at this case my initial reaction following it has always been that this is going to be a very hard case for Larrikin to win.
SARAH DINGLE: And why did you think that?
STEPHEN DIGBY: Because of that very point in fact that it is, it is certainly an identifiable and discernable piece within the song but as a gut feel, my gut feel was that it was probably not a substantial, sufficiently substantial in the song as a whole.
Clearly the judge disagreed with me.
Musicologists' reports often come in in these types of cases where the many experts give some sort of sonic or sound comparisons and, but often at the end of the day there is the judge's gut feel based on the law of course. But often it is a bit based on whether he thinks it's substantially similar.
SARAH DINGLE: Stephen Digby says it could clear the way for more cases to come forward.
STEPHEN DIGBY: I think it could and that's something that concerns me a little bit. And I look forward to seeing the judgement in full and I'm hopeful that in that he might give us guidance on what he considers to be a considerable, a substantial part or not.
SARAH DINGLE: The parties will meet again on February the 25th to discuss the findings and talk about costs.
ELEANOR HALL: Sarah Dingle reporting.
Labels: Kookaburra sits in an old gum tree, men at work
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