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AU Band Men At Work Owes Royalties On 'Kookaburra'
neonsignal writes "Iconic Australian band Men at Work have been ordered to pay royalties for an instrumental riff in their song 'Down Under.' The notes were sampled from a well-known children's song 'Kookaburra Sits in the Old Gum Tree,' written in 1934 for a Girl Guide's Jamboree. The Justice found the claims of the copyright owner Larrikin to be excessive, but ordered the payment of royalties and a percentage of future profits. Let's hope the primary schools are up to date with their ARIA license fees!"
Fuck, is the guy who wrote this even still alive?
Oh right, copyright law is written for zombies.
bbcnews.com article with, I guess, the same story - can't tell because original link gives a server generated "Sorry, Page not Found" error
http://www.abc.net.au/news/stories/2010/07/06/2945781.htm
Reminds me a bit of Bittersweet Symbphony, the Verve song that was deemed to have ripped off an obscure version of The Last Time by the Stones.
I guess a lot of that goes on, whether intentional or not.
The original author is dead a few years now according the the linked article.
Merry merry king of the bush is he
Laugh kookaburra laugh kookaburra
Gay you life must be.
Sung to the flute riff on "Land Down Under"
Slashdot: Where nerds gather to pool their ignorance
.....Men at Work do come from a land down under, where women glow and lawyers plunder.
...This has got to be seen as a win for the band. They have to pay royalties back to 2002... which is >20 years since the song was released and became a monster hit. Surely its earnings potential has slacked off some since then. Imagine how bad it would be if they had to come up with royalties back to its heyday...
They wrote the song in 1981, and reissued it in 1982, well before the creator's death and subsquent sale of the song to Larrikin. This may set a very bad precedent, since new owners won't always honour agreements predating their ownership.
It should be:
http://www.abc.net.au/news/stories/2010/07/06/2945781.htm
Plus, this news did the rounds in Australia months ago - don't know why ABC is reporting it just now.
Why don't all you "Pirates" come together and write a computer program to generate all possible melodies for the 32 bar AABA, form. Then publish the whole lot under the creative commons license or whatever, call western music complete, and then download in peace.
Also these lawsuits are always bunk. Noone ever sues over the harmony do they?
"Let's hope the primary schools are up to date with their ARIA license fees!" How did schools come into this? It's a band making royalties and profit from a musical arrangement written by someone else, possibly even sampled directly from a recording (according to the summary). Oh, and the article link appears broken
Copyright law was originally intended to contribute to the arts by incentivizing creation with a temporary monopoly for the creator. Hands up whoever thinks Ms Sinclair wouldn't have written this song if she knew some company 75 years later weren't able to get a cut of something they had absolutely no part in creating.
I particularly like this report about the judgement where "the flute riff made up only 5.8 per cent" of the song. Five point eight percent? You have got to be kidding me!
It speaks volumes when the legal system must resort to distillation and quantification of art to such spurious accuracy. It reeks of the text book explainging the linear programming of poetry that gets ripped up in Dead Poets Society or the King of Austria as portrayed in Amadeus, "And there are simply too many notes, that's all. Just cut a few and it will be perfect!".
Xix.
"Everything is adjustable, provided you have the right tools"
Trademarks can be lost if they become common generic terms in the language. It happened with Aspirin, Escalator, Zipper, Thermos, and Yo-yo. It almost happened to Kleenex and Xerox, and could happen to Google ("why don't you google it?").
Perhaps copyright needs a similar exception. If your song/phrase/work becomes an iconic symbol of something else (in this case, Australia), then clearly the benefit to society of not having it protected by copyright outweighs the author's right to profit off it. So it should lose its copyright.
The song was written by a Scott.
In case anyone is curious, here is the offending song. The part that I believe caught them starts at 1:55. Hard to know if they had the original song in mind when they wrote it or not.
Qxe4
... the whole court case only happened as a result of a TV panel game, Spicks and Specks (Australian version of Never Mind The Buzzcocks). In how many years of every employee of that Australian music company presumably hearing Down Under played how many hundreds of times, nobody noticed until it came up as a curious fact on the telly...
http://www.news.com.au/entertainment/music/quiz-show-sparks-aussie-anthems-battle/story-e6frfn09-1111117725552
Clearly this is encouraging more works to be created.
To be honest I would love to see at least one example of an author who created a culturally significant work pre-1950 who has created another meaningful work in the last 10 years.
> Swedish copyright law states explicitly that machine generated things can't be copyrighted because they're not creative
I, for one, have never come across a piece of music which was generated by a machine without any intervention of human creative force.
By strict definition, either nothing comes under that classification, or most modern 3-D animated movies do come under that classification.
Yes, I know, the legal system doesn't work that way. Still, it seems to be a stupid law as you state it.
Nobody expects the Copyright Inquisition.
Page removed?
These posts express my own personal views, not those of my employer
http://en.wikipedia.org/wiki/Kookaburra_Sits_in_the_Old_Gum_Tree
"Marion Sinclair died in 1988"
"In June 2009, Larrikin Music sued the band Men At Work for copyright infringement, alleging that part of the flute riff of the band's 1981 single "Down Under" was copied from "Kookaburra"."
The problem is not with copyrights lasting more than the creator, since this was infringed withing the creator's lifespan. The question is why is this brought up only now. Isn't there supposed to be something about having to defend your copyrights or some such?
Given both are Australian and the artist might have been exposed to the tune? Its also the 1980's so no world wide exposure, Australia was inward looking. Growing up maybe as part of the "Girl Guide's Jamboree" mb many people enjoyed it and it seeped into the national subconscious in various forms over the years?
Domestic spying is now "Benign Information Gathering"
Kookaburra sits on electric wire,
jumping up and down with his pants on fire.
Laugh Kookaburra,
laugh Kookaburra
how hot your pants must be.
Task Mangler
Strange the Larrikin Wikimedia page does not mention it, but it is now a Warner Music Group holding (bought by Festival Records, swallowed by Warner Music Australasia).
The *IAA's successfully bought off the Aussie politicians in full public view, it is only natural that they get to recuperate that "investment" in Aussie law changes. Bad thing for Australia is: The carrot they offered in return has turned out to be a dud - those silly Aussie politicians sold out for little more than shiny trinkets of no value.
It happened with Aspirin, Escalator, Zipper, Thermos, and Yo-yo. It almost happened to Kleenex and Xerox, and could happen to Google ("why don't you google it?").
Frisbee. And it did happen with Jeep, but Chrysler staged the only recovery I've ever seen. When they bought Jeep, it was in general use, then they sued their way out of it. Probably one or more of Frigidaire, dispose-all, Rocky's (Rocky Mountain Jeans) and many many more (Coke in the south), but Jeep is the only one that annoys me. It was in general use. And Chrysler sued their way back to ownership. Well, maybe photoshop, as Adobe are asses about it when you photoshop something.
Learn to love Alaska
http://www.youtube.com/watch?v=eqOIdtKZTG4
Next, they'll be going after Robbie Dupree's 1980 hit 'Steal Away'.
That is, if Warner Bros happens to stumble across Wikipedia and find out that "the song is built around a keyboard riff and background vocals notably similar to the 1979 hit version of 'What a Fool Believes' by The Doobie Brothers "
Maybe Dupree was taunting Warner Bros with this aptly tiled song ;-)
Just because you haven't heard of it doesn't mean that the story is uninteresting.
Anyway, by the way you write, you sound like a teenager so you're probably too young to remember Men At Work's major hit "Down Under".
I can't say I'm even a fan of the band myself but the fact is this article is more about the music industry and licensing than it is about the band themselves - so go sit quietly in a corner and contribute when you have something interesting to say.
Gentoo Linux - another day, another USE flag.
Kookaburra sits in the old gum tree
Eating all the Vegemite he can see
Stop, Kookaburra! Stop, Kookaburra!
Leave some there for me
He just smiled and gave me a Vegemite sandwich
And he said,
"I come from a land down under
Where beer does flow and men chunder
Can't you hear, can't you hear the thunder?
You better run, you better take cover.
Orwell was an optimist.
Comment removed based on user account deletion
Comment removed based on user account deletion
14 years was good enough for Thomas Jefferson, and it is good enough for me.
The people granted a temporary monopoly on some intellectual property as an experiment to further the useful arts, and they can certainly take some of it back.
Where is this strange world you live where Kleenex, Xerox and Google *almost* became common terms referring to the generic?
Anywhere outside the USA.
I blow my nose with tissues.
I photocopy things with a photocopier.
And I search for things with Bing or Yahoo. I also google for things with Google.
Let's hope the primary schools are up to date with their ARIA license fees!"
Never let a fact get between a geek and his meme.
ARIA doesn't take money from the primary schools. ARIA licenses recorded music for commercial use in pubs, restaurants, dance halls and so on.
Licensing FAQs - What sort of sound recording reproductions is ARIA able to license?
We DO NOT license reproductions in the following circumstances:
Anyone wanting to put together a product/compilation for sale to the public (this includes all retail stores, market stalls, etc); /product to be created for branding, promotional or training use;
Any compilation
A DJ or any other person wishing to use a sample of a commercially released sound recording in their mix or any person wanting to create mix-tapes or remixes;
The reproduction of sound recordings for use in a film, DVD or video;
The use of sound recordings for theme music, promos or in a dramatic context in television productions;
The reproduction of sound recordings for use in any advertisements or commercials;
The reproduction of sound recordings for use as "walking on" or "walking off" music at seminars or conferences;
Music for use at wedding ceremonies or other public events;
Any person wanting to make a "back-up" copy of their album, CD or cassette;
Any person wishing to make a copy of a sound recording for a friend;
Any person wanting to set up a business where the customer details which sound recording they would like on a CD and the business puts the required sound recordings onto a CD and sells the product to the customer. This is considered the retail sale of a compilation CD;
Any person who wants to set up a business where they convert sound recordings into another format for customers (e.g. converting vinyl records into CD format for customers;
ALL reproductions of sound recordings downloaded from unauthorised internet sites;
Podcasts or other online uses.
Colin Hay defends the song saying (emphasis added):
http://www.abc.net.au/news/stories/2010/02/05/2811671.htm
Yet in the music video for "Down Under" a flute player is shown playing the quotation while sitting in a gum tree.
Pure coincidence?
+0 Meh
When you write your will, put a clause that all of your works are released under an OSS or Public Domain License upon your death.
There should be a CC License created for this... "In Memory Of"
Make America grate again!
http://answers.yahoo.com/question/index?qid=20100330094003AA140Jg ;)
Gives some numbers, very very big numbers
Domestic spying is now "Benign Information Gathering"
Oh, so if I invent an algorithm which inputs (non-copyrightable) facts like measurements of people's tonal preferences and use it to transform random white noise into a nice musical composition (i.e., every different random input give me a different nice musical output), if I reveal that a particular composition was created in this way it cannot be copyrightable, but if I would have presented that composition as my own creative work it would be copyrightable?
Don't you find that strange?
Another example: I invent an algorithm which manages to select pleasantly colored subregions of the Mandelbrot set (based on random color maps and a search algorithm + simulated-human-preference rating algorithm).
Someone made a point that I think made sense......if we're going to have copyright, we ought to not make it based on the life of the creator.....otherwise it will be motivation to kill artists. Make it 15 years from the time it was created or something.
What about works that take enormous amounts of people and money to create like "The Wizard Of Oz" or "Transformers"? Why is everyone generally against an artist, an estate, a corporation (a group of people) owning the property that they create? Ownership of land doesn't expire, as long as an owner pays their property taxes. Whether we like it or not Disney and Paramount and NBC make some decent products. Sure, they are corporations, but they pay creators for the property they own. I'm not saying the system is perfect, but just because a piece of property was created in someone's mind doesn't have to mean that the property suddenly belongs to the planet after an arbitrary time period.
As thoughts become more valuable there are incentives created by allowing people to own their thoughts and profit off of it.
What if, for example, I decided to buy some land and build a farm. My intention is that my farm would be a business for my children and grand children, so I work very hard to build that farm and make it profitable and till the land and build silos and invest in equipment. I innovate on my farm so that I am competitive and I create repeatable processes that can be carried on after I die. I employ people and I make food, all of which benefits society. What if my children don't run my farm and my estate runs the farm. Would you want to take away my farm after I die?
Instead now I am a composer. I work very hard to compose songs and I take great personal risk to publish those songs and make them recorded and I spend lots of money creating relationships with directors and producers to put my songs in their films. Should ownership of all my work just evaporate after I die? Why does the farmer get to keep his farm and I have to lose my stakehold?
They are expected to pay 5% of their royalties since 2002 and from now on.
So how much extra money did they make from all this extra press coverage?
Might balance it all out in the long run ....
You owe me, big time.
"Lost time is not found again."
Did the Girl Guides pay the kookaburra for the rights to license a derived work from its call?
I hope so, because there's a lot more infringing work done by the guides if they haven't...
Maybe NYCL could offer help in getting redress for this penniless author, the Kookaburra and ensure that such artists are compensated fairly for their works.
Did the Girl Guides pay royalties to the Welsh for using the song 'Wele ti'n eistedd aderyn du' to derive their work?
This is a great example of why the Creative Commons is a great idea. The original author clearly intended for this to be a folk song, given that she never sued schools for singing it (I'm not even Australian and I learned it at school) and attempted to donate the rights to a public library association.
There's a perfect xkcd for my sig but I'm too lazy to look it up. sudo someone go find it.
You're a little confused. Nobody thinks the GPL isn't evil, we merely recognise it's a necessary evil, to prevent us all getting screwed over by the unecessary evil of unfair copyright.
The The Brothers Grimm, Hans Christian Anderson, and even Aesop want their stories Back.
Yes I am talking to you Disney...
Snow White was made less than 70 years after the death of a Grimm brother (which, under life+70, would have been copyrighted until 1933). 70 years from death of Hans Christian Andersen was 1945! Extended copyright wouldn't have benefited Walt in the early days at all.
Aesop--I think we're safe there, but did the Mouse ever actually use Aesop? (Probably in the short films that I'm too lazy to look up).
There's a perfect xkcd for my sig but I'm too lazy to look it up. sudo someone go find it.
There are two main problems. The first is that any particular permutation of a given number of musical notes may be either recognisably melodic or not. if you take a seven note tune like "Twinkle Twinkle Little Star" there are theoretically 8^7 permutations in the same key and with the same note lengths, so the odds of producing that tune by hitting 7 single notes at random is just over one in two million. But of these, it's impossible to say how many would actually be tunes in the normal sense of the word.
The second problem is that once you start introducing different numbers of notes, different length notes, chords, key changes, different tempos, instrument sounds, numbers of instruments and so on, it becomes more or less impossible to provide a figure for the maximum number of permutations anyway.
In short, I would guess that the answer is that the probability of accidentally producing two identical piece of music wouldn't be much greater than the now legendary monkeys typing Shakespare.
To have a right to do a thing is not at all the same as to be right in doing it
And you're caught and jailed for murder. Now everyone can use work similar to yours and sue YOU for infringing THEIR work, asserting that THEY got it from the Public Domain work, not you.
Meanwhile, being in jail, you don't get to reap the benefit of your work being sold.
Alternatively, you have to become a mass murderer and kill all others who you've been infringing on.
Or you could not kill authors and do your own work.
Yup, it's really silly.
Some real good could come of this. You see, many many mass-produced generic pop songs all use the same 4 chords: G, C, F and A.
http://www.youtube.com/watch?v=5pidokakU4I -- This video illustrates the point rather well
Now the RIAA/ARAA will never run out of artists to sue. They can take every major pop hit of the last 30 years and have them sue each other back and forth in an orgiastic Roman frenzy of subpoenas. Every pop artist will sue every other one, on and on, with the damages spiraling further and further upward until the songs themselves become worth more when not played at all. Problem solved.
But seriously, come on - ALL art is derivative, music as much as anyone. You experience music and you have a gift for music, your experiences with music and the emotions they trigger in you inspire you to create your own music, you create based on what you've heard because it's what you know. Maybe it's a little different than the songs that inspired you, but usually not on a fundamental level.
But perhaps we should take this model and run with it. Maybe if we can just get this applied to the Summer Blockbuster or the Romantic Comedy formula movies, we can finally do away with all the terrible, predictable, and rote plotlines that we've been subjected to for years.
"Not all who wander are lost" -- JRR Tolkien
If your song/phrase/work becomes an iconic symbol of something else
Which song are you talking about here?
-- Braden's law of data: All data spends some of its lifetime in an excel spreadsheet.
I clam the rights to E-flat and want $0.05 per song that uses it.
People seem to be missing a point here. It's been over 30 years since the song 'Down Under' was released, yet Men at Work are still able to collect royalties on it. Cry me a river if the system that allows that to happen also says they need to share their royalties with someone with an even older claim. Sounds like poetic justice to me.
Will it never end? How many years must something be in the dust and the the lawyers just feed off themselves, sueing everyone who sneezes near them? The song "Down Under" is from the 80's, early 80's I think, we talking almost 30 years! And just now we're getting to the lawsuit?
Quick, I think Ben Franklin's estate should sue for all the shit he created that everyone uses without paying for. Ben wanted it to all be freely available, but who cares what *he* wanted, he's dead, and now it's in lawyer hands.
And they aren't thinking about the benefit of all men like Franklin, they are thinking about the benefit of one man. Themself.
And that's why this world is going to shit.
If telephones are outlawed, then only outlaws will have telephones.
I always thought it said "Dynamite some bitch"
Stupidity only gets you so far, then you've gotta try
I wouldn't know a Kookaburra from cockle barrow, but is it possible that both songs resemble the natural call of the bird?
Then again, if that was the case then I suppose it would have occurred to someone...
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
Apparently the usual defense is to identify some work already in the public domain that also sounds the same.
If authors routinely crib from the public domain instead of creating something original for fear of violating copyright, then copyright is impeding rather than "promot[ing] the Progress of Science and useful Arts", as another country's constitution puts it.
Disney made the vast majority of it's fortune by borrowing FROM the public domain. The scripts for nearly all their best selling movies were based on older stories on which the copyright had expired (or never existed).
Then I guess Pixar films and Quentin Tarantino's films published through Disney's Miramax brand are your "nearly". But I see your point: Pinocchio and The Jungle Book came out within two years of Collodi's and Kipling's respective copyrights expiring in major markets.
The allegation is that "Kookaburra" became a symbol of the Commonwealth of Australia.
So I guess the only way to survive in the industry is to take out a good errors and omissions policy with a company like MusicPro Insurance. Am I right?
Shouldn't there be a statute of limitations? This is possibly one of the globally best known Australian songs of all time. The riff is completely obvious, and it's taken them 20 years to get around to suing?
This.......is........Australia!!!!
If something similar happened in the US, I would claim fair use because it's not copying but rather quoting a small portion of the melody (just the "merry merry king of the bush is he" part) in a new context that offers commentary. "Down Under" is after all a song about Australian culture, so it quotes a well known Australian children's song.
True, but it winds up Adobe even more when you say you photoshopped it with GIMP.
Burns: We're building a casino!
McAllister: Arrr. Give me 5 minutes.
I wish it would happen for Frisbee. No one knows what I mean when I mention an Ultimate disc.
It probably would have bankrupted him rather early resulting in him and his art being mere footnotes in history.
If we want to move in the right direction AND fix healthcare, we should drastically shorten patents, especially drug patents. Then make copyright expire with the death of the author even if a corporation buys it. Then the corporations can take the money they waste on lawyers and dedicate it to medical research so they can keep their copyrights alive (literally).
I suspect the band's biggest expense here will be legal fees (shared with EMI). The ruling awards only 5% of the royalties earned by the song since 2002. That means the band's earnings from their heyday in the early 1980s are untouched. Given the state of modern music sales, I'd be surprised to see the amount owing reach more than $10,000. The court basically said, "Yeah, it looks like the band unconsciously based the solo on an old campfire song, but we're going to award minimal damages because you're just gold digging."
In this situation, if you had a trial, lost, and the court awarded millions of dollars to the original artist, it wouldn't matter if the original artist mysteriously died - the award would still stand and would be paid to his estate. Now, if the OA were to mysteriously die before the trial was over, that would be another story, but... it would be awfully hard to get away with this. The first question the police are going to ask when someone dies in suspicious circumstances: "who would have wanted him dead?" - you'd find yourself under a microscope pretty quickly.
Copyright violation requires that you take someone else's copyrighted material and distribute it as your own (with or without modifications). None of the steps outlined above have anything to do with distributing these works - he/she is just trying to register copyright for them. If you try to register a copyright on something that's already registered, that's not illegal, and you can't be sued for it. You just might not get the copyright, or for a derived work, might get a copyright be still not be able to sell the work (because portions of your work belong to someone else).
... that the composer of a song entitled "the Land Down Under" just happened to come up with a series of notes that are nearly an exact duplicate of a phrase from one of Australia's iconic songs. I'm sorry, but that absolutely beggars belief. Don't get me wrong, I'm as riled up about copyright abuse as anyone else, but let's not pretend this riff wasn't copied lock, stock & barrel from the "Kookaburra" piece.
I was an avid listener of this kind of music when "Down Under" was released, and it the sequence in question was clearly recognizable to me. And if an American college student recognized this riff at first hearing, it's absolutely freakin' impossible to believe that the Australian band who performed it didn't recognize it. Again, I'm not saying I agree with the way copyright law is being used here, but come on. This bit was CLEARLY copied from the "Kookaburra" piece.
No. Just reduce the term to something like a generation (20-25 years). Creators will still create and be able to make more use of existing culture in new culture.
I can't find the reference, but I'm pretty RMS himself has described the GPL as a necessary evil.
He was re-edit his books every few years, adding new material. If people wanted the latest and greatest (the one with more g's), they'd buy, and they did.
Just like George Lucas.
Oh, say does that Star-Spangled Banner entwine / The myrtle of Venus with Bacchus's vine?
So if you write a song so brilliant that everyone immediately recognizes you brilliance and it becomes an iconic part of your culture, you get no money from it?
Shorter copyright terms are the answer, trademarks are different.
Is 1563649 a prime number?
I agree with you for the first two, but lots of people in other countries google for things.
I think the test would be to ask a child what they mean. I had no idea that any of the examples the OP mentioned were trademarked until they were specifically pointed out to me.
Is 1563649 a prime number?
That statutory license does not cover any copying of recorded sound
Nor does it appear to cover derivative works such as the result of subconscious copying. From 17 USC 115: "the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner."
And there still doesn't appear to be any options available to me if I had been making the disputed recording available on my web site as a free promotional download.
And Ugg Boots and I think Roller Blades too... but I could be wrong. :)
Then it's time to trot out Spider Robinson's short story "Melancholy Elephants", which was thoughtfully released under a Creative Commons NonCommercial license.
Share and enjoy.
It's a mangrove.
There are many campfire songs that the Girl Scouts and Boy Scouts no longer sing because they were told they would be sued for royalties if they did not pay. It is bone headed things like this that give ASCAP and the music publishing industry a bad name. They could have given Boy Scouts, Girl Scouts and other non-profits limited permission to perform the songs at official functions and maybe made some money off of related sales like records and sheet music. But no, they had to threaten to sue. So songs like "This Land Is Your Land", "Puff the Magic Dragon", "God Bless America" and "Happy Birthday" are no longer sung around the campfire.
A quick google search found:
The birds may sing, but campers can't unless they pay up:
http://archive.southcoasttoday.com/daily/08-96/08-23-96/b02li056.htm
And it is even mentioned in Wikipeda:
http://en.wikipedia.org/wiki/American_Society_of_Composers,_Authors_and_Publishers#Criticism
Isn't America wonderful
Since nobody has referenced "Melancholy Elephants" yet, I will.
Gets more and more apropos every day, it seems.
You are not a brain: http://books.google.com/books?id=2oV61CeDx-YC
kookaburra sits in the old gum tree
screwing all the magpies he can see
stop kookaburra
stop
that ones got vd
The new right fascists are bilingual. They speak English and Bullshit.