"Land Down Under" infringes on "Kookaburra?"

[sharesunited]

A judge ruled today that the flute riff in Men at Work's 1987 hit "Down Under" plagiarizes the melody of "Kookaburra," an Australian kids' song written in 1932. A music publisher who bought the rights to "Kookaburra" in 1990 is suing for 40 to 60 percent of the royalties earned by "Under" in the last six years.

Wow, that's a stretch. This could never have happened in a U.S. court. It is classic fair use.

[sharp_stick]

1. I listened to them both

over top of each other and I can't see any clear similarity. Maybe they had more to go on but it sure looks like it's going to an appeal.

[sharesunited]

2. The flute riff was a clear tribute to the earlier well-known work to give it an Aussie flavor.

But it is a ten-note passage in performance which evokes memory of the old song, and is not an essential part of the new work.

That kind of thing is done in jazz improvisation all the time.

Bizarre.

[sharp_stick]

3. The cadence and tone seemed to be

different enough IMO too. But you are absolutely right about it being a small part of the whole work.

[Norrin Radd]

4. Homage is not plagiarism. This is some bullshit.

[annabanana]

5. I think copywrites ought to run out when the artist dies.

Let their kids make their OWN music.

[Hannah Bell]

6. 1 quote of one line = 40-60% of royalties?

this is how capitalism destroys creativity.

[sharesunited]

7. Or how litigation does?

[Hannah Bell]

8. the litigation is to defend/extend the exaggerated property right and its revenue.

that's first cause, not the litigation, or litigation as a category.

and it kills creative ferment, since *every* work of art incorporates prior works of art overtly or covertly, consciously or unconsciously.

the quote of kookaburra adds a lot to that song, given its topic.

my impression is that kookaburra itself stole from the folk tradition - on edit, yes:

"The tune is taken from the Welsh folk song "A Ei Di'r 'Deryn Du" or "Dacw ti yn eistedd, y 'deryn du" (English translation "There you are sitting, black bird."). The syllables and themes are almost identical in pattern to those in "Kookaburra"."

http://en.wikipedia.org/wiki/Kookaburra_(song)


Thus capitalists appropriate social products of 'the people', turning them into private property & income streams. The person/corp bringing this litigation had nothing to do with the song "kookabura" -- didn't write the words (those were written by some obscure lady teacher 1920s), didn't write the music (that was a product of generations of musicians developing the song & passing it on).

Capitalists just fenced off the song, labeled it "private property," & started charging people a fee to use it. Same thing they do with everything ordinary people create.

[Kievan Rus]

13. Sad but true...the same reason for the life-plus-70 copyright insanity

It's simple greed by the already obsenely wealthy. It's the same reason why we have the absurd life-plus-seventy copyright terms...primarily the lobbying brainchild of Di$ney and $cientology.

Thanks to them (and assuming that copyright terms don't get extended yet again), it will not be until the mid-to-late 22nd century that all of the culture of today is public domain. Long after all of my generation (Generation Y) are dead, long after all the children of my generation are dead, when only about 100 of the grandchildren of my generation will still be alive, when the great-grandchildren of my generation will be getting Social Security payments (assuming it still exists), when the great-great grandchildren of my generation will be middle age, and when the great-great-great grandchildren of my generation will be the age that we are today.

[enlightenment]

9. This makes absolutely NO sense at all.

edited because I read the rule wrong . . .

That's what happens when you get your knickers in a twist . . .

sorry.

[slampoet]

10. No one cared to defend Black Hip-hop heads who did this. Now it affects songs written before HipHop

Too bad a lot of the music composers didn't stand with the performing artists back when they had a chance to have SANE copywriter laws.

Artists didn't defend sampling and now riffing is being attacked.


I wonder what will happen when they realize the bass line for a James Taylor song is EXACTLY the same as a bass-line of a Jackson 5 song????????


What will happen when they realize Joan Jett, Tracy Ullman, And Iris Dement all wrote songs with the EXACT same melody?????

[MilesColtrane]

11. Yes, this couldn't have happened in a U.S. court because there is a...

three year statute of limitations on copyright infringement.

I guess Australian law is different.

Yes, the "Kookaburra" melody is clearly present (as are it's chord changes in "Down Under's" chorus - but that's not actionable).

The first 11 notes of the melody occur at 0:12 on this video.

At 0:53 you hear the first part, followed by the next stanza. This happens again at 1:56.

http://www.youtube.com/watch?v=DNT7uZf7lew

Given that the song is about Australia, it's inconceivable that the inclusion of the melody of one of the most widely known Australian songs in the world just happened without forethought.

Men at Work should have asked permission from the publishing company to use it.

The concept of fair dealing (fair use in Australian law) is more restrictive than it's U.S. counterpart. Fair dealing is only recognized if the work is being used in research and study, review and criticism, "reporting the news", or parody and satire.

I'd bet that the percentage of royalties the publisher eventually receives is reduced to 5-10%.

[Hannah Bell]

12. it was deliberate: the song is about australia, & kookaburra is a representative

"australian song". that's why they quoted it.

nevertheless, this suit = bullshit.

the melody of kookaburra = welsh folk song.

[DemoTex]

14. Perry Como's hit song "Catch a Falling Star" (by Lee Pockriss and Paul Vance)?

Based on a theme from Brahms' "Academic Festival Overture."

http://www.youtube.com/watch?v=8nZ0GKX97BM
Bassoon and strings introduce the theme at 4:30

This is but one of many examples of pop music using classical or folk themes. Hell, Dvorak used American folk themes in his "Symphony No. 9 'From the New World'." Mahler's "Symphony No.1" features a double bass soloist performing a variation on the theme of "Frère Jacques", etc., etc. etc.

[Hannah Bell]

15. classical composers stole quite often from the folk tradition. there's no

independent "art" - or anything else, for that matter.

[slampoet]

17. In the time of Brahms copyright lasted 14 or 21 years only.

If applied to the current day the following would ALL be public domain.

All the Beatles, 99% of Motown, Chess, Stax, Atlantic records, 98% of jazz, 80% of Country music, 100% of Doo-wop, All Kraftwerk or DEVO currently released, All of The Who, All REM, Every Eagles song, All of Carol King, All Frank Zappa music, pretty much every Funk, Soul, Metal, Punk or Swing song you ever heard..

Everything the Grateful Dead ever did.



By the way, when people ask me what good contemporary American Music isn't being taught to kids in the schools......I can Almost use the same list.

[ieoeja]

16. Yeah, it's not like IBM could trademark PC long after it was in popular use industry wide.

Oh, wait....