No Easy Answers in the Copyright Debate

[MartinMusicMan]

I'm no lawyer, but I think playing a "lick" (however that may be defined) from an improvised solo is very different from playing a 2-bar phrase of a published or well-known melody for which somebody holds a copyright. If I played a Charlie Parker lick in the middle of a popular recording, I don't think there's a legal basis for Parker's estate to claim royalties. But if I played 2 bars of "Happy Birthday To You" in the middle of my hit song, I'm gonna hafta pay up.

[Pete Thomas]

I'm no lawyer, but I think playing a "lick" (however that may be defined) from an improvised solo is very different from playing a 2-bar phrase of a published or well-known melody for which somebody holds a copyright. If I played a Charlie Parker lick in the middle of a popular recording, I don't think there's a legal basis for Parker's estate to claim royalties.

The lick is unlikely to be copyright, it's just a jazz lick.

Bird did not own thye copyright in his improvisations unless they were on an original tune. So he would have owned his impro on Ornithology, but not on How High the Moon.

Strange but true.

[harmonizerNJ]

I consider it pretty funny when our lead guitarist plays the "Jingle Bells" melody in his electric guitar solo when we cover the song "You're All I've Got Tonight" by The Cars. Makes me wonder if there should be a copyright exception for using a melody in a way that is clearly sacrilegious to its original context.

[Pete Thomas]

I consider it pretty funny when our lead guitarist plays the "Jingle Bells" melody in his electric guitar solo when we cover the song "You're All I've Got Tonight" by The Cars. Makes me wonder if there should be a copyright exception for using a melody in a way that is clearly sacrilegious to its original context.

If you use a melody combined with another (ie a medley), or if you do a parody, then you need specific permission if you are going to make a recording, as opposed to a standard licence.

[Budget Explosion]

in US, you don't need prior permission to publish a parody recording (falls under Fair Use.)

[SaxPunter]

That doesn't surprise me, trying to argue that copying copyright music should be allowed as a tribute is a very unwise claim, and bound to fail IMO. For one thing it admits that the material is actually a copy, but more importantly if the judges did allow that it would set an enormous precedent for anyone to use copyright material without permission and claim it's a "tribute".

I'm still sort of on both sides of the fence in this case, but I'm sure they could have made a better case for appeal than "it was a tribute, guvnor, we didn't nick it"

The song in question existed well before the (4 notes) were added, yet the snivelling bottom feeding parasites at Larrikin music are awarded 60% of the royalties for those four notes..... Where they there when Colin Hay wrote the song? Where they there when the band wrote the original arrangement?

The Kookaburra round was GIFTED to the girl guide movement as part of a competition in 1936. Larrikin Music - who proudly state their business model as "exploiting copyright" should not even own the rights to the round in the first place.

In this case, nobody has taken money out of the mouths of a musician or composers family, a greedy lowlife corporation has taken advantage of copyright law to make money out of a great Australian songwriter. Norm Lurie, the ar$hole behind Larrikin music has never written a song in his life.

[JohnGalt]

thats neither here nor there. The unfortunate part was that if the band new that riff was from from an old dittie and didnt realize they needed permission. I would say the label that produced and released that song dropped the ball and was negligent in protecting their own. Was it the sax riff that was the phrase in question? If so, I would like to say that if the band new they couldn't use that phrase, the song would be just fine without it. However, my recollection of that song was that the riff was the coolest part...

[SaxPunter]

thats neither here nor there. The unfortunate part was that if the band new that riff was from from an old dittie and didnt realize they needed permission. I would say the label that produced and released that song dropped the ball and was negligent in protecting their own. Was it the sax riff that was the phrase in question? If so, I would like to say that if the band new they couldn't use that phrase, the song would be just fine without it. However, my recollection of that song was that the riff was the coolest part...

You think? Are you sure you are not thinking about another song?

The song in question has a flute riff

...Well I saw Colin hay do it live 6months ago and it didn't make a scrap of difference without it. 60% of royalties for four notes when missing make bugger all difference to a song is just lawyers using loopholes in laws designed to protect songwriters and musicians to make money. It's nothing to do with artistic IP in this case it's about money.

This song spent 30 years on high rotation before the obscure reference was used as a question on a quiz show.

It's greed. Colin hay and men at work were very successful, now some lowlife wants a slice of the fruits of their efforts.

[hakukani]

Here's a good tutorial on US copyright law and fair use:

http://www.schooltube.com/video/b888...07-Music-Video

[Kelly Bucheger]

Another angle on this topic: Living Legend Tries to Make a Living

[JohnGalt]

He was just sitting in with Jimmy Fallon's show the other night...was introduced as "the most sampled drummer in the world"

[JohnGalt]

You think? Are you sure you are not thinking about another song?

The song in question has a flute riff

...Well I saw Colin hay do it live 6months ago and it didn't make a scrap of difference without it. 60% of royalties for four notes when missing make bugger all difference to a song is just lawyers using loopholes in laws designed to protect songwriters and musicians to make money. It's nothing to do with artistic IP in this case it's about money.

This song spent 30 years on high rotation before the obscure reference was used as a question on a quiz show.

It's greed. Colin hay and men at work were very successful, now some lowlife wants a slice of the fruits of their efforts.

I think i'm thinking of the wrong song (that group is not nearly as familiar with us here in the states).. What was the name of the song again? I want to check it out of grooveshark.com ...

[SaxPunter]

I think i'm thinking of the wrong song (that group is not nearly as familiar with us here in the states).. What was the name of the song again? I want to check it out of grooveshark.com ...

The song in the court case is "Down Under". You might be thinking about "Who can it be now" which had a sax riff that echoed the melody.

[JohnGalt]

oh yeah(just listened to it) ... their "other" hit. Imho thats a pretty distinctive flute part, unfortunately. Definitely a selling point of the song and the band sound. The acoustic version is nice, but may have never been a hit without that flute part.
I feel ya brother ... sucks to be them, but I would fault management and the label.

[patmiller]

On this I firmly believe that a copyright holder ought to have protection from unauthorised exploitation and a share of any profits. In the particular case of "Down Under", there is no doubt in my mind that the use of the "Kookaburra" riff was a deliberate quote from a song that only Aussies would "get" - a sort of in joke. This view has been confirmed by both the original judgement and the subsequent appeal.

I don't know where the figure 60% of royalties comes from - that seems to me to be excessive considering the contribution of the riff to the song. In reports of yesterday's failed appeal by EMI to the full bench of the Australian Federal Court the figure of entitlement is 5% of royalties. This would seem to be about right to me.

One of the 14 reasons that EMI put forward in its appeal against the original judgement was that the issue would never have arisen except for a quiz question on a TV show devoted to pop music trivia. An inadmissable but more pertinent fact is that the issue would never have arisen if the Down Under had not been a hit. If you make a large amount of money from a song and it can be proven that others contributed to it then you must be prepared for the claims that will inevitably follow.

On the issue of bottom feeding corporations, my belief, based on my own personal dealings with this firm, is that Larrikin Music doesn't always act in the best interests of its artists. Some years ago I was offered a contract which was put to me in terms of publishing one of my songs but which, on closer examination, sought to assign the rights of all of my future output for several years while not binding Larrikin to do anything at all for me. I can easily imagine that their rights to "Kookaburra Sits in the Old Gum Tree" were possibly not gained at any real benefit to the composer or her heirs or the Girl Guides movement.

So, here I am upholding the principle of copyright protection and agreeing that a share of 5% of the royalties would seem fair in this case. Yet, at the same time I'm highly sceptical that Larrikin has obtained the rights to that song on any basis that is benficial to anyone other than Larrikin.

[JfW]

In the particular case of "Down Under", there is no doubt in my mind that the use of the "Kookaburra" riff was a deliberate quote from a song that only Aussies would "get" - a sort of in joke.

As an aside it's a tune well known here in the US as well. I remember singing "Kookaburra in the old Gum Tree" in those elementary school choir classes they made everyone take. When I first heard the song during the 80's, it was quite simple to connect the flute solo with the tune.

[JfW]

Another angle on this topic: Living Legend Tries to Make a Living

There's also the "Amen Break" which can be heard here at 1:43 on which Hip-hop is supposedly based, or something [warning. that youtube has explicit lyrics imbedded in hiphop tracks].

The copyright of the song is held by a Sax player

[JfW]

A cheap way to protect your music is copy the sheet music tune/lyrics and mail it to yourself. Do Not open it, just merely put in a file box with a label which it is. This can protect you down the road if some one tries to steal your tunes.

Best regards,
Michele

A while back I was reading the writings of an IP lawyer I think who stated this was *NOT* ironclad. Post marks are simple and it's quite plausible to have them faked. Best way to protect your creation is to register it for copyright officially.

[Budget Explosion]

regarding "Down Under", some posters here are muddling the two copyrights involved. EMI is the music publisher for "Down Under" and owns the copyright for composition and CBS (now Sony)/Columbia Records is the record company and they own the sound recording. EMI Music Publishing (and the "Down Under" songwriters) are the folks screwed by this Kookaburra decision. The record label is probably not affected at all as they have to pay the same statutory mechanical royalty per sale whether they pay EMI Music Publishing or Larrakin or both.

[Pete Thomas]

I don't know where the figure 60% of royalties comes from - that seems to me to be excessive considering the contribution of the riff to the song. In reports of yesterday's failed appeal by EMI to the full bench of the Australian Federal Court the figure of entitlement is 5% of royalties. This would seem to be about right to me.

So do we know for sure, is it 60% or 5%?