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A Rant - An Australian Icon of a song and a greedy scurrilous corporation.

43K views 155 replies 35 participants last post by  SaxPunter 
#1 ·
Hi All

This issue has been irking me for days

http://www.news.com.au/entertainmen...t-rip-off-ruling/story-e6frfn09-1225826972739

Many of you know the song "Down Under" by Australian Band Men at Work. It's also become a quasi national anthem especially at sporting events. There's a flute riff in it that if you listen carefully sounds like "Kookaburra sits in the old gum tree" which was a round written for a Girl Guides competition many years ago. The author of that round passed in 1988. 4 years ago, Larrikin music - backed by a London company Music Sales Group, which, on its own website, states that it "owns, manages and exploits over 200,000 music copyrights. It is also Europe's largest printed music publisher" bought the rights to "Kookaburra" Exploit being the operative word here.

If you listen to the riff - it does sound like the Kookaburra melody, all 11 notes of it.

This week an Australian judge ruled that Men at work ripped off the song, despite the fact that "Down under" was written 2 years earlier and performed in pubs sans flute.

For this, the stand up guys at Larrikin music - who describe their victory as "one for the underdog" want 40-60% of the royalties from a 3 second flute riff in a 3 minute song.

Here's Colin Hay's (Men at Work lead vocals, songwriter) response to the ruling

http://www.dailytelegraph.com.au/ne...nt-make-me-laugh/story-e6frezz0-1225826872936

So - watch what you play boys and girls, stand up guys who "exploit copyright" might hunt you down in 30 years

The greed in this world is, well just sad :x
 
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#110 ·
Yes, I knew intentional or otherwise has no basis in copyright.
I was just clarifying Matt's post.

Actually in NZ, if a plaintiff only claims for damages and not loss of
profits, and if it can be shown that the copying was unintentional,
then there is no monetary compensation required.
 
#112 ·


www.youtube.com/watch?v=AXs-_xmyTiA

Bass line....

Worth taking to court?

If you are musician, probably not.

If you are a greedy individual "exploits copyright" maybe.

Larrikin music's mission statement includes "exploits copyright" ..... does anyone here think thats right?

Last night, at the Governor Himdmarsh Hotel, a music venue in my town that still fosters real musicians - we saw Colin Hay, the man who wote the song "down under" . He's part comic, part musician, part thespian and a real gentleman. We saw him play HIS songs, that HE wrote. Even the song in question, with a very modified flute riff which had been the subject of said court case, modified enough to be nothing like the Kookaburra round.... and you know what - it took NOTHING away from the tune. It was still "Down Under" and it still would have been a hit all those years ago.
 
#117 ·
It's not a problem nor is it very expensive if you ask permission first. If you are foolish enough to not ask, then you deserve to suffer the consequences. Ignorance of the law has never been a justification for breaking it. I'm in favor of artists retaining the rights to their songs. I agree with and I am strongly in favor of copyright law. The life of the artist plus 80 years is way too long though. It's easier to just not quote other musicians. That is not a hardship in my opinion either for artists or listeners.
 
#118 ·
"international copyright law" There is no such thing. But in case of doubt, err someone going to court in the USA, you are not allowed to sell your goods in the USA and a couple of lawcopycat countries like Australia, even if the law has not been broken, or if it can be proven that the partie going to court actually copied from the 'offender'. If there is a doubt, the lawyers win. Big time.

Ever been to countries with a lot of reggae and related stiles? Could you imagine how the music scene would look like if the musicians did not take a riff and offer their own interpretation?
Drop a nice melody into the scene and collect a dozen or more different interpretations within a couple of weeks. Copying destroys the music?

The duration is not life + 80 years in the USA. But currently the lawyers are trying to get the duration to something like 150 years flat + prolongation on request. And they try to get older music into the deal too ...

"... It's easier to just not quote other musicians. ..." How many ways can you organize 8 notes in a harmonic pleasing way? How many of these combinations have already been used in the past? Are you sure the computers wont find your accidental copying? Being sued out of 20k MoneyUnits might ruin you, but 100 such cases might be a good steady income for a law firm that bought a couple of songs cheaply.
 
#120 ·
"... It's easier to just not quote other musicians. ..." How many ways can you organize 8 notes in a harmonic pleasing way?
People keep saying this. To prove a copyright infringement you have to show that the defendant intentionally copied the melody from the work in question. Computers can find accidental copying, but it's not an infringement of copyright.

What would make it an infringement is if you'd heard those 8 notes in someone els's song and copied them on purpose.

So if I write 8 notes as part of a song that you have never heard, and you write the exact same 8 notes by coincidence, I cannot sue you unless I can prove you had access to my tune.

It's fine to copy "generic" riffs as well, but reggae is not immune from copyright laws. I live in a country where there is (or was) a lot of reggae played, and I was involved in the studio scene. producers were extremely aware of not breaking copyright laws, as reggae musicians still like to protect their work.
 
#119 ·
Whether or not music is copying is partly up to the courts to decide. I would much rather have laws than no laws even if I don't agree exactly with the current laws. It seems like some people in this thread are saying that you should be able to use any music of any length without payment and credit. That is wrong.
 
#122 ·
If the song has been played in public everybody in this solar system has the chance to have heard it.

It is the same as in patent right: If you develop the same as someone else, and he is faster at handing in his papers you are screwed.
Not to mention the problem that you can have patents in parts of the world that are unpatentable in other corners, and when your local laws catch up you're screwed as the other patent is older than yours, and the US lawyers will have a field day on your company's bankaccount. Been there and got out without a dent as I left the company before the US lawyers hit 'em. My former co-workers lost their jobs that way.
 
#124 ·
and therein lies the problem Pete, any judgement will always be subjective.

The thing that irks me the most (and why I started this thread) is that there is a very big difference between protecting someone's work and others who seek to manipulate that protection to make money. One is protecting an artist, the other is opportuniistic greed. The riff in the song in question as been in that recording snce 1979, if it was a such a blatent rip-off - why did it take 30 years for someone to notice?

This ruling is the thin end of the wedge, there are greedy snivelling lowlife individuals listening to all sorts of recordings to target "rights to exploit" right now because of it.
 
#125 ·
This was supposed to go back to court for Feb 25th to discuss compensation. Has anyone seen any news on the judgment? We might not, the two parties might be engaged in negotiation and that might end with a settlement that includes terms of confidentiality.

I would hope the judge has told the corp that he isn't likely to approve a grossly large package.
 
#126 ·
from wikipedia:
On 6 July 2010, Justice Jacobson handed down a decision that Larrikin receive 5% of royalties from 2002

Until this high-profile case, "Kookaburra"'s standing as a traditional song combined with the lack of visible policing of the song's rights by its composer had led to the general public perception that the song was within the public domain.

from the article:
A music industry source estimated that the song had made around $14 million to date - which would give Larrikin around $700,000 so far and about $37,000 a year from ongoing annual royalties estimated at $750,000.

------------------------

wow. and not even to the original composer or her estate. this completely subverts the artist's plea that copyright is their mechanism for compensation. i don't understand why musicians/copmposers aren't up in arms about this (and similar) cases. "can you hear, can you hear the thunder?"
 
#127 ·
and not even to the original composer or her estate. this completely subverts the artist's plea that copyright is their mechanism for compensation. i don't understand why musicians/copmposers aren't up in arms about this (and similar) cases. "can you hear, can you hear the thunder?"
A publisher collects on behalf of the author.estate, so they will get their share. 5% looks to me lime a judgment well in favour of the defendant in this case. It could have been much worse. Did Larrikin get any costs? If not they didn't do very well.

i don't understand why musicians/copmposers aren't up in arms about this (and similar) cases.
The thing you have to realise is there are sometimes two sides. I'm a composer whose only living is from royalties based on my copyrights. If someone used a bit of one of my copyrights in their tune and made $14 million, yes I would be up in arms and expect more than 5%.
 
#128 ·
i'm not suggesting shortchanging or ripping off the composer. i actually side with you about the composer getting his due, in basis.

this is one of those instances that seem to muddy up the water regarding copyright law enforcement, and really takes the wind out of the sails for some of us who are looking for justice in those laws.

in this case, the composer is dead. she did nothing about the alleged infringement when alive. she signed over copyrights to the "libraries board of south australia" in 1987, just before she passed away. larriken "took over" the copyright in 2000, but back dates the deal to 1990.
.
so, if she signed over the copyrights to the public library (almost sounds like an intent toward public domain or australian patriotism), who would benefit from a "publisher" getting money? why is larriken even allowed to "take over" copyrights that are signed over to a library system by a citizen? - this sounds like a breach and violation of the donor's intent and, if i am not misunderstanding what the "libraries board of south australia" is, a very offensive disregard for the australian citizens.
 
#129 ·
so, if she signed over the copyrights to the public library (almost sounds like an intent toward public domain or australian patriotism), who would benefit from a "publisher" getting money? why is larriken even allowed to "take over" copyrights that are signed over to a library system by a citizen? - this sounds like a breach and violation of the donor's intent and, if i am not misunderstanding what the "libraries board of south australia" is, a very offensive disregard for the australian citizens.
I don't know the exact situation or the law.

But these days (in the UK at least) a publisher cannot take more than a 50% share. So you can't sell you song like people did in the old days.

e.g, Richard berry sold Louie Louie for $1200. It became the most recorded pop song ever.

Eventually through a legal battle he managed to get his rights to the song back (I think was in the early 90s) and went from being on welfare to being very comfortably off.

Sometimes there is justice.
 
#131 ·
When I first heard the Men At Work song I recognised the Kookaburra reference straight away. If you grew up in Australia in the 1950s like I did it was an iconic piece that we all sang as a "round" in school (another one I remember was called "London's Burning").

I think Greg Hamm the flute/sax player in the band is a little younger than I am but I'm also pretty sure he meant it as an iconic quote that would resonate with Australians - a sort of in joke. It certainly resonated with me. If it broke copyright law then it was just a bit of bad luck for the band and good luck for the owners of the copyright. If the song had not been successful there would have been no legal action. The fact that it was successful allows the copyright owner to share. Copyright, like gravity, is not just a good idea - it's the law.

The lesson to take out of it is when quoting in a song not only do you have to make sure the quote fits against the chords but also that it is out of copyright. If it is still in copyright then you should also make sure that if it's recorded that it's never successful. So far I've managed through assiduity and perserverence never to have suffered from the problems associated with a hit record. But you have to stay alert, the vultures will always gather if there is a meal.

The secret is to stick to jazz and you will NEVER have the problem that Men At Work had.:TGNCHK:​
 
#132 ·
the vultures will always gather if there is a meal.
Which is exactly why I started this thread, there is nothing at play here about protecting an artists work which I think we all agree is right and just. This situation is more about greed and opportunistic parasites.

Colin Hay states here that the song in question existed in it's entirety well before the flute riff... all 2 bars was added in a recording. How is it that the "new" owners now get royalties from a tune that would of been just the same size hit with or without the riff astounds me.

As I said previously - this song was ubiquitous in this country during the 1980's - it's probably been played millions of times. Yet the original author of the Kookaburra round nor the State Libraries Board nor these "New" owners made this (tenuous at best) link FOR 30 YEARS!!!!.... and it wasn't them that made the link, it was used as a question in a TV show - that nobody got right!!

Nobody has been ripped off here, yet these greedy stinking scumbags who as their mission statement "exploit copyright laws" have seen it as simply a way to extract money out of an artist.

It's not right, it's not what copyright laws should be used for and it's bloody un-Australian.
 
#139 ·
hey pete, did you pay any royalties to the authors of "stray cat strut" for your "coolstuff" song? seems like i heard one or two familiar bars in there.
No need to, I did not infringe their copyright. (If you are talking about the similar bass line). That bass line is extremely common and existed way before the Stray Cats so would not stand up to any kind of claim.

public library owned copyrights
What are public library owned copyrights?

it seems like the argument is technical (pete) versus principle (me,others).
I didn't actually realise I was arguing, I have mostly been just trying to say how the law works, as fas as I know it. I don't think I know enough about this case to take sides properly, all I can say is that given the evidence I have seen and the law as I know it, it does appear to be a copyright infringement. As I've said that I don't agree with a great deal of copyright law, or the way it is enforced. If I appear to be "devil's advocate, it doesn't mean I'm arguing against principles.

I am probably bound to take a different point of view when I rely on copyright laws to protect my own income, but I do find I'm usually on both sides of the arguments about copyright law.
 
#141 ·
You can be sure that if someone took a melody from Men At Work, their lawyers would be right on it.
Men at work wrote the melody themselves. The part in question is 7 notes in a flute riff which was included in the studio recording.
 
#144 ·
I can not believe that Colin Hay and Greg Ham purposely ripped off that flute part from that Kookaburra song because the flute part is not even essential to the song, the flute part is just a filler that could have easily been done by a different guitar riff or whatever and the song could basically be the same.
A part of the Kookaburra song loosely sounds like the answer part of the flute fills ie the "Kookaburra sits in the old gum tree" part.

Although as I remember it, I think Greg Ham was sitting in a tree playing the flute part (ala Kookaburra sits in the old gum tree) in the video so that doesn't look too good.

btw I heard an Opera that must have been recorded back in the 30s or so and there in all it's splendor was the melody to Andrew Lloyd Weber's Memory.
If there are any rockers around apparently Alice Coopers Schools Out riff is taken from a Miles Davis riff.
There are countless other examples of putting a known riff into a different context and not being sued for it but I don't believe Colin Hay and Greg Ham did this because the song does not really depend on the flute riff and if they did then they were probably just having a joke with it like a Bebop musical quote from another song ala Charlie Parker.
 
#145 ·
Agreed - this, taken to it's logical conclusion may mean that anyone who strings a heap of major seconds together will be sued by the composer who wrote the jaws theme?
 
#148 ·
It isn't used as a parody. A parody is a version that ridicules, or mocks or makes a joke of the original. For any judge to allow this songs use as a parody it would not just be inserted into another work, it would probably be a version that stands on its own or is used in medley of other parodies. Merely doing an arrangement that alludes to the original copyright and or including it in a medley would not satisfy any judge that it would qualify as "fair use".

It is rarely safe to claim something like this as fair use, because if challenged, then it will usually be the opinion of a judge as to what constitutes parody. I have recorded what I consider to be parodies, but I would not risk claiming fair use, so I credit the original copyright owner. Court cases to defend what one personally considers "fair use" can be very costly.
 
#149 ·
any humorous, satirical, or burlesque imitation, as of a person, event, etc.

I am asking if this song isn't a humorous, satirical imitation of Australians and the Australian people?

Buying bread from a man in Brussels
He was six foot four and full of muscles
I said, "Do you speak-a my language?"
He just smiled and gave me a vegemite sandwich
The use of the flute refrain just adds to the concept that this is about Australia.
 
#150 ·
I am asking if this song isn't a humorous, satirical imitation of Australians and the Australian people?
You missed my point above. For that extract of a copyright work to count as a parody in the eyes of a judge who knows copyright law, it would have to be a parody itself. It's irrelevant whether the song into which it is incorporated as an extract is a parody, which I don't think it is, and I doubt whether any judge would either.

If this was the case, then any song which somebody might construe as "humorous" would be able to include copyright material with no impunity, and that is not the spirit and intention of "fair use" of copyright.
 
#152 ·
I know this thread has reached its natural conclusion but a short postscript is required.

Colin Hayes was found dead in his house a few weeks ago, apparently from suicide. The court case discussed apparently weighed very heavily on his mind and was, most probably, a direct cause of his depression.

A dubious case has led to the death of a wonderfully talented man. I had no contact with him personally but as an Australian who loves his music, I am deeply saddened.

RIP Colin.
 
#154 ·
I know this thread has reached its natural conclusion but a short postscript is required.

Colin Hayes was found dead in his house a few weeks ago, apparently from suicide. The court case discussed apparently weighed very heavily on his mind and was, most probably, a direct cause of his depression.

A dubious case has led to the death of a wonderfully talented man. I had no contact with him personally but as an Australian who loves his music, I am deeply saddened.

RIP Colin.
Sorry that's not correct, Greg Ham the flute and sax player died recently. Colin Hay is well and truly alive.
 
#156 ·
From www.colinhay.com

I met Greg Ham 40 years ago, at Kim Gyngell's house in 1972. Last year of high school. He had blond hair, rosy cheeks, ridiculously bright eyes, and along with Gyngell, was the funniest person I knew. He was sharp, real sharp. We were friends from then on, we liked each other. He lived for a while in Park Street in St Kilda, in a communal household, which was the best of times. The best parties ever. Greg took up the saxophone and flute during this time, he was always practicing. He got really good. We shared countless, unbelievably memorable times together, from stumbling through Richmond after playing the Cricketers Arms, to helicoptering into New York City, to appear on Saturday Night Live, or flying through dust storms in Arizona, above the Grand Canyon, or getting lost, driving aimlessly through the Gippsland countryside. We played in a band and conquered the world together. I love him very much. He's a beautiful man. He never lost his love and passion for music, and indeed taught music to kids over the last few years. He was a great teacher, and they loved him. The saxophone solo on "Who Can It Be Now", was the rehearsal take. We kept it, that was the one. He's here forever.

I'm thinking about his family, and hoping they are receiving the love and support they need and deserve.
 
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