You better run, you better take cover

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 Down Under ripped off Kookaburra: court

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):

Lyrics: Dyna ti yn Eistedd y Deryn Du, Brenin y goedwig fawr wyt ti, Can dere deryn can dere deryn, Dyna un hardd wyt ti.

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:

Categories: arts & entertainment, law & order

Tags: , , ,

22 replies

  1. What galls me is that no-one had ever made the connection till it was mentioned on Spicks and Specks a few years back. Why didn’t anyone make the connection in the 80s when such a lawsuit may have made more sense at least in terms of timing?

  2. Thanks for writing about this Lauredhel, I’ve been meaning to do so and haven’t . What’s going to happen to all the millions of songs out there which have references to other songs in them, as well as modern Jazz arrangements which often refer cheekily to otehr works? Wouldn’t the advent of sampling have made this verdict unenforceable? Well, that’s what I thought, but obviously I’m wrong.
    Larrikin records, what a bunch of complete knobs. Building their careers on songs written by other people – You going to give some of that money to “Anon”, Larrikin? Thought not.

  3. Listening to that youtube clip is the first time I’ve “heard” the resemblance.

  4. If Larrikin does actually get any money from this, I heartily suggest that they should give all the money to organisations which promote the preservation of Welsh traditional music and support Welsh musicians and composers.

  5. Temporary monopolies are generally toxic; the longer they last, the more toxic they tend to become over time. Copyright should expire on the author’s death. IP law is rapidly becoming a laughing-stock.

  6. Thank you for writing this. That ruling is such utter bollocks … it’s even made me use the term “bollocks” which I rarely do. Copyright law is so completely fucked …

  7. Did the legal team for Men At Work refer to the Welsh song? Guess I should go and read the judgment, because I just don’t get it.

  8. I agree with SL’s post, hopefully this’ll be overturned on appeal. Great post and great arguments against this legal decision, Lauredhel. The other thing that struck me about this was that the Men At Work riff – like many instances of creative serendipity – could simply be a coincidence, an accidental imitation/reference. I wonder what their argument was in court anyway?

  9. Addit: I’ve added audio of a version of the Welsh folk song to the post.

  10. Now I’ve heard the Welsh folk song … well, I didn’t really think I could get angrier about this. But seriously? This is Disney and the name Cinderella, it’s New Line and the word Uruk-hai, it’s bloody White Wolf and bloody every-indigenous-mythology-ever.

  11. it seems at least theoretically possible that the Welsh version is derived from Marion Sinclair’s composition. The scouting movement did spread all kinds of material in unlikely ways

  12. Let’s try and make this so ridiculous it has to stop. Incite some record company to go after, say, every rapper that’s ever used the phrase “don’t stop, get it, get it”. Or something.

  13. Once Kraft get their purchase of Cadbury out of the way I suppose we can expect to see them sue Men at Work for using “Vegemite” in Down Under.

    • @bryan, that’s most unlikely seeing as Vegemite is a trademarked name rather than a copyrighted work. The legal principles involved are quite different.

  14. Hi, I have flicked this to boing boing, so you might get a little more traffic if they pick up my link suggestion. These people are vampires. Great job on finding the Welsh tune!

  15. Edited to tweak, and to add the two QANTAS ads which I think are the ones found in the same judgement to not violate this copyright.
    I dunno, folks. You tell me.
    I wonder: can it be long before someone computer-generates every possibly-euphonious riff, combines them into an anthology, and publishes? How about someone doing this and issuing it with a Creative Commons licence? Who’s up to the task?

  16. Found this while hunting for more info on the Welsh derivation – if the author of the post is right, it seems unlikely that it’s actually an “old” Welsh tune:
    I like the idea of publishing an anthology of all possible riffs under a CC licence… but given the growing, worldwide disquiet over abuses of copyright, perhaps it’s worth focussing on fixing some of the stupid laws themselves.

  17. And yeah – the Qantas ad uses exactly the same Kookaburra riff, with less other instrumentation to interfere with recognition. Think the ruling is foolish, but I hope that Larrikin get their just desserts in the costs hearing: “right – here’s what a performance of Kookaburra would have been worth: have $50, and you pay your own legal costs”.


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