What the flying blueberry-flavoured hell is up with this idea that Men At Work now owe bazillions of dollars – up to 60% of their earnings on Down Under – to a pack of copyright trolls?
Men at Work’s No.1 hit Down Under reproduced a “substantial part” of the children’s folk tune Kookaburra Sits In the Old Gum Tree , infringing copyright in the song, a Federal Court judge found today.
Larrikin Music, which owns the copyright to the song Kookaburra , is now entitled to recover damages – potentially a huge sum – from band members and their record company.
What actually happened, as far as I can glean, was that Marion Sinclair filked an old Welsh folk tune, “There you are sitting, black bird”, for a Girl Guide competition back in the Thirties, overlaying some Aussie lyrics about kookaburras.
Here is a brief sampling of the two songs, for those not familiar with them:
(You can find complete versions on Youtube.)
[I don't suppose anyone has a recording or sheet music of the original Welsh tune?]
Edited to add 5 Feb 2010: Here’s the Welsh tune Dyna ti yn eistedd from Cwm Rhyd-y-Rhosyn as sung by Dafydd Iwan ac Edward in 1995 (the copyright status and date of melody composure are not stated):
There you are sitting, blackbird, You are the king of the forest, Sing bird, come, sing, bird, come, What a beauty you are.
The now-’owners’ of the song Kookaburra, Larrikin Music, think that two bars of the flute riff in Down Under constitutes infringement of their “rights”. Larrikin are part of Music Sales Australia, which describes their core buiness thus:
The Music Sales Group of companies in Australia undertake copyright administration and exploitation, book publishing, production music, a hire library catalogue and print music publishing and distribution. Head office staff handle day-to-day financial, marketing and publishing activities with the main focus on copyright and royalty administration.
When asked how much money they wished to claim from Men At Work, Larrikin’s solicitor replied, “Obviously the more the better.”
Elsewhere, people have talked about Men At Work “sampling” the song. They haven’t sampled it. Sampling is using a recording of someone else’s song, as a riff or instrument or loop. This is an extremely brief quoting in variation, not a sampling. I’m moderately musically literate and closely familiar with both songs, and it took many listens and much reading of fora before I could even identify the offending part. The riff is in a different part of the musical sentence from the “original”, is in a minor key (such that no intervals are actually even the same), and has a different rhythm from the canonically-sung version of Kookaburra.
More importantly, as far as I can tell from what information’s available on the ‘net right now, Sinclair didn’t write the tune in the first place. Attributing lifetime-and-beyond ownership to the first person to write a folk tune down, or the first person to put news words onto an old tune, is a very dangerous idea indeed.
One door opens; another door slams shut and brings down the chandelier.
Addit 8 Feb 2010: These are, I believe, the QANTAS ads that were found, in the same judgement, not to violate Larrikin’s copyright: