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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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#2 ·
i think if Marion Sinclair ( before she passed) or her surviving relatives ahd raised this when the song was first a hit and had been fighting for their dues ever since i would have some sympathy with the Judges ruling, yet it seems that some "corporation" wil benefi, simply because they own the rights, i have read this a few timeas and fail to see where the underdon wins anything despite the clainms of the corporation, the flute riff was part of an arrangemnt clearly not the backbone of the original composition, this ruling stifles creativity and frankly i think it stinks
 
#3 ·
40 to 60% sounds low to me but obviously it won't to the band who used the riff. It is essential to get clearance before you release a song.Just using a tiny riff can cost you 100% plus costs if you don't. Music Publishers have musicologists who are paid purely to examine tracks for unauthorised use of lyrics and riffs. A close friend of mine had to retrospectively pay back £65 ,000....yes 65 thousand pounds back because the singers of a very well known group borrowed a couple of lines from a well known standard ona tune he had cowritten. I myself recently wrote a couple of top lines for an act on a major label and my share ended up at 2.5% despite the fact I had written all the lyrics and melodies because the act unbeknown to me hadn't cleared a sample before release and then the original artist/ publishers wanted 90%.
 
#5 ·
Ahhh yessss, this ranks right up there with not being able to sing Happy Birthday to You at a restaurant without paying royalties. Glad to hear our brothers from Oz have a similar set of judiciary idiosyncracies.

Do you have to pay royalties to sing "God Bless Austrailia" to the composer of Waltzing Mathilda?
 
#12 ·
#7 ·
The second motif is close to it, but the song references all sorts of Australian Icons..... Vegemite for instance, and I don't see Kraft foods lining up for their take!!!

It's just plain greed and the pointy end of a very sad wedge for this country's legal system
 
#15 ·
I understand the need for a certain concept of intellectual property but the exploitation of copyright ownership is just a big fraud, especially in this case. It's a shame a judge ruled in favor of the plaintiff. Not surprising though when you consider the world has been making and enforcing laws in favor of money movers rather than hard working men for about as long as anyone can remember.
 
#9 ·
Yes, I thought the similarity was superficial at best.

I have some experience of this having been sued in 2004 for industrial copyright
infringement. Believe it or not, you don't even have to register for copyright
protection in NZ, only produce a work.

So far it has cost us $500k in legal fees just for our defense of a copyright that
had in fact expired. And if you don't defend it, you lose.
Basically it comes down to who has the deepest pockets.

We obtained a judgment in our favor last year and I thought that was the end
of it. Then I heard that the plaintiff had appealed the decision. Now finally last week
I heard that the appeal had been dropped.

There is a big lesson in this. When it comes to litigation, only the lawyers win,
because even if you do win, you never retrieve all your costs or make up for
the stress of waiting to hear a final outcome.
 
#16 ·
I think they pay the rights to use those samples. At least their record companies do. Maybe the record company they're signed on already own the right of the sampled material or acquire them (they'd still make money).

Edit : An interesting read about the legal aspects of sampling here : http://en.wikipedia.org/wiki/Sampling_%28music%29

"Today, most mainstream acts obtain prior authorization to use samples, a process known as "clearing" (gaining permission to use the sample and, usually, paying an up-front fee and/or a cut of the royalties to the original artist). Independent bands, lacking the funds and legal assistance to clear samples, are at a disadvantage - unless they seek the services of a professional sample replay company or producer."
 
#13 ·
Here is a comparison that I prepared for a discussion in a music class. The students really had some great arguments on both sides of the fence here.

Unfortunately for Colin Hay - intent has no bearing on this decision. I had never picked up the link between the two songs and I have been playing it for over 20 years. The odd thing was - nobody really had until it was mentioned on a music quiz show here.

Regrettably, this may be one of those stupid decisions that is made by an uneducated judiciary rather than common sense. Sure, the same notes are in the melodic line and if singled out and played in isolation you would probably draw a similar conclusion. However, the harmony and context are different. It is a bloody minded if it quacks like a duck, walks like a duck - it's a duck.
 

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#17 ·
This is what I said above. There are grey areas but the choices are pay for the sample before you use it or get permission...there have been cases where owners of copyright have given permission gratis for their work to be used. Another common practice is masking...This is using an original rhythm track or part and then distorting it and overlaying your own rhythm track or part..thereby getting the vibe or feel of the original...which is often impossible to replicate becaue it's been played by real musicians in the distant past. You then have the slight problem of putting it in perfect time on the computer which is easily done. This is extremely difficult for musicologists to detect because without going backto the unmixed version and removing the distortion yoiu can't hear it only feel it. A third option is to replicate the sample,,replay it..this is a grey area because it's still copying but not technically sampling.
Intentional plagarism is not new in pop music..it's been going on for ever. The fashion years ago for " Answer Back" records for example. " I come from a land Down Under"..the flute part was played in a slightly less zealous climate of Litigation..no doubt innocently. It's a strong possibility that Music Publishers will have had their eye on that song and the flute part for a good while. There's an old saying in the music game..." Where There's A Hit..There's a Writ."
 
#18 ·
Well, this is curious to me because my publisher in Germany told me that one could quote another work up to four measures worth without having to get permission or pay royalties.
 
#20 ·
As I understand it, there's no set amount that you are allowed to copy here in America. The "4 bars," or "3 seconds" rules we hear are false, according to my old Music Business teacher. His take was that if it sounds like someone else's melody or lyrics, then it's infringement as long as someone can prove you had the opportunity to hear the original. Since all this is subjective/grey-area stuff, the best thing to do is be super careful.
 
#22 ·
Colin Hay's own statement is the best response:

"Kookaburra is written as a round in a major key, and the Men At Work version of Down Under is played with a reggae influenced feel in a minor key. This difference alone creates a completely different listening experience. The two bars in question had become part of a four-bar flute part, thereby unconsciously creating a new musical "sentence" harmonically and, in so doing, completely changed the musical context of the line in question, and became part of the instrumentation of Men At Work's arrangement of Down Under."

The ruling is the product of stupidity and ignorance.
 
#23 ·
Colin Hay's own statement is the best response:

"Kookaburra is written as a round in a major key, and the Men At Work version of Down Under is played with a reggae influenced feel in a minor key. This difference alone creates a completely different listening experience.
Much as I sympathise, this is not the point. This is outlining the fact that it's a very different arrangement. Copyright generally only applies to a melody (and the very basic rhythm as it apples to the notes in that melody).

If you take a copyright work and do an arrangement with a different feel it is usually still an infringement of the composer's copyright.

As an example, if I take two bars of a jazz tune, e.g. Take Five, and do a heavy metal version of it played on guitar in 4/4, it is still an infringement of the copyright.

I always sit firmly on both sides of the fence in these discussions. As an educator I would love to be able to host more copyright work on my site or use as examples in my books and DVDs, but I can't do that without getting clearances which can be hideously expensive. Also in my production work I would like to be able to use some samples creatively, ditto.

On the other hand I make my living as a composer, so would be very peeved indeed if people take my music and use it in their arrangements without so much as a "by your leave".

I haven't read enough about this particular case to make any judgments.
 
#24 ·
I take your point, Pete. How about this situation: someone makes a hit record using a tune that includes 2 bars that are the same as 2 bars of a different melody that you wrote. You may or may not notice, but nobody says or does anything for 20 years. Then it dawns on someone that the 2 bars are the same as in your work. They acquire the rights to your melody, then sue the writers of the original hit record claiming victory for the underdog. Whether or not this is strictly legal, is it right? Shouldn't there be a statute of limitations on finding 2 bars in a recorded work that are the same as 2 bars in some other work? It's a good thing Beethoven's heirs don't own the rights to every melody he ever wrote.
 
#25 ·
It won't work like that as nobody would be able to acquire the rights to my tune. I own the copyright until way after I'm dead.

Some parts of this law are well defined, but often the execution of it is down to a judge and jury. It's not just a question of a certain number of identical notes, the memorableness of a small snippet of melody or riff may have some bearing. Also the context.

I wrote a small article on copyright:

http://mediamusicforum.com/copyright.html

The complexities of these laws is why I don't want to voice an opinion on this case, as I really don't know all the ins and outs.
 
#34 ·
Whatever the legal rights or wrongs the case stinks plain and simple.

It has been brought by a lowlife organisation that is exploiting a law designed to protect writers and musician to make oscene amounts of money.

These people are the worst kind of parasites.

My blood is boiling.
 
#35 ·
I'm glad it's not just me... there are seferal facebook groups springing up - one with 8000 members already
 
#38 ·
I think there's a big difference in how people "feel" about a thing, and the law. The law states that Larrikin is right to want royalty payments. We don't like it, but this is how it is.

If MAW appeal the decision, they should restructure their defence and perhaps they'll win, then the law will be seen to be correct. But not by Larrikin.

Funny thing the law.
 
#39 ·
I think there's a big difference in how people "feel" about a thing, and the law. The law states that Larrikin is right to want royalty payments. We don't like it, but this is how it is.

If MAW appeal the decision, they should restructure their defence and perhaps they'll win, then the law will be seen to be correct. But not by Larrikin.

Funny thing the law.
Laws, and entire governments in fact have been changed by the power of people who thought they were not right. I sincerely hope in this case that common sense prevails and this time there is a judge who poseses some.

Like Paulio.... my blood is boiling about this, it just is not right
 
#43 ·
I do not however understand the argument that this song is beloved and therefore copyright law shouldn't apply to it.
This is not the basis of my argument, the original author of the melody now attributed to this song would have been well aware of it's existence for at least 6 years before her death in 1988 yet did not take issue with it.

My point about it being beloved is that every Australian would have heard it and not made the connection of the two, not to mention the airplay overseas for 30 years - probably been played on radio in this country a million times.

Now 30 years later a greedy publisher without a musical bone in his body identifies a tenuous link purely to make money. None of this has anything to do with protectiong artistic work and it sets a dangerous precedent, how many songs can you think of that have melodies similar to others? There's only 12 notes and only so many progressions possible.
 
#51 ·
I certainly think the laws are very far from perfect. However it is a very well meaning law that I believe needs a good overhaul. If people think copyright is outdated though it's a very sad day for creative artists and composers, most of whom a scratching a living and need the law to protect their works and livelihoods.
 
#55 ·
50/50 split Pete..that sounds a lot to me.
It's quite standard for composer representation/agency for TV commissions, commercials and production music.. I've had better percentages, but not nearly the kind of exploitation of work I get currently. 50% of a thousand is better than 85% of a hundred!
 
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