marcus westbury

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Kookaburra, down under and the dire state of copyright law

February 22nd, 2010 by marcus

Kookaburra,_Lachender_Hans_(Dacelo_novaeguineae)

A Kookaburra (image by Eva Hejda)

COURT decisions, particularly those involving heinous crimes, are typical talkback and tabloid fodder. But how often does the heinous crime that has the public up in arms revolve around the obscurity of copyright law?

Last week, the Federal Court found that Men at Work had infringed the copyright of Larrikin music in its iconic early ’80s hit Down Under with that flute riff lifted from Kookaburra Sits In the Old Gum Tree. The reaction seemed to range from the bemused to the incredulous. Comments on news websites and online forums have described the decision as “plain stupid”, “an utter crock”, “disgusting” and “crazy.”

As someone who has long been frustrated with absurdities of copyright, the decision didn’t surprise but the reaction certainly did. I suspect that the reaction has been so stark for a few reasons. The first is that Down Under is a pop classic. It’s one of those rare works of any genre that has transcended the pop charts and wedged itself into the national psyche. The court has questioned its very existence.

Think about that. Imagine if a song that, for better or for worse, has been associated with defining moments of our national identity was never created? Today, without the kind of legal agreement that most artists struggle to negotiate, Down Under would never have been recorded. Inevitably, tomorrow’s favourite songs risk being lost forever for what might debatably be described as homage, similarity or subliminal referencing.

The implications go beyond this case. The practical reality is that, today, all sorts of works are routinely not recorded or created for the want of a licensed sample or pre-emptive permission. The trend is spreading into other art forms.

Try filming the Sydney Opera House. Will the estates of Brett Whiteley or Ken Done find themselves in court as the result of an overzealous future application of the Opera House trademark? Will future generations of artists be sued for painting, videoing or photographing it?

Implausible, but possibly yes, and not much more implausible than this decision might have seemed in the 1970s.

The second source of the outrage is that it is the owners and not the author who brought the case. Kookaburra’s writer Marion Sinclair died a decade after the Men at Work song was released and there’s no suggestion she ever objected to it.

The decision reinforces the argument that a set of rules designed to protect artists, creators and innovators has become the domain of profiteers, speculators and litigators. At its worst, copyright law is evolving from a set of legal protections to an almost predatory casino industry. If you’re on the wrong end of it, copyright can resemble a protection racket to extract dollars from creators for even casual, creative, referential and reverential use of works they honour and love.

The final sense of disbelief stems from a more basic shock that the case has been brought now. How can a similarity that was barely remarked upon for nearly 30 years suddenly be regarded as blatantly ripping off someone else’s intellectual property? Is there no statute of limitations on these things? Some common-sense reappraisal of copyright is desperately overdue. A system designed to reward innovation is increasingly stifling it. A system designed to empower creators is alienating them. The law has drifted further and further away from forums where artists and creators have any say and towards a system wherein the lawyers, lobbyists and profiteers are writing rules that serve their interests.

Artists need to reassert themselves in the debate. A healthy right to reference and draw from the culture around you is vital to contemporary artistic expression. It is vital to innovation – the very thing the copyright system is supposed to encourage. Surely we can open up the system, take out the lawyers and profiteers and switch to a system that actually encourages appropriate use and reuse? Work that is drawn from or references the work of others is natural and inevitable; what’s missing is a simple and proportionate mechanism to ensure that they are compensated. It’s been a difficult debate to get started, but perhaps this decision will be the catalyst for it. No doubt the popular backlash will come with consequences. You mess with unofficial anthems at your peril.

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10 responses so far ↓

  • 1 Chris Feb 22, 2010 at 10:57 am

    I whole heartedly agree,

    It’s almost as if when the rights to the song they had men at work in their sights,

    there should be some statute of Limitations for a copyright especially when the “infringement” occured prior to the sale.

    If there is a case, it shouldn’t be backdated, perhaps they could argue a right to future profits. But lets face it, it’s only part of the song, certainly a recognisable riff.

    It is possibly in a way a tribute, honouring a truely aussie song withing another iconic aussie song.

    It’s sorry to see such a decision, but it’s unfotunately where things are going. Litigation seems to be where we are headed for everything..

  • 2 Feargus Manning Feb 22, 2010 at 10:59 am

    Thanks Marcus…i had not had a chance to get any detail on this case….this is a very useful summary of what went down.

    If u have read the judgement did you notice ANY part of it that seemed to make sense? Is this the sort of decision that will only apply in this oner case because of soem strange contractural arrnagement and therefore won’t have any broader legal impacts?

  • 3 Adam Monkhouse Feb 22, 2010 at 1:30 pm

    I took a very facitious view of the copyright debate on my own music blog Save 2! 4! recently, and I think you’re spot on. Where does it end?

    While I was being somewhat cheeky to illustrate the point, I think you really nailed the crux of the issue in that last paragraph. It comes down to people being fair and reasonable. And not being greedy!

    Hope you get a chance to check out my post also.
    http://savetwofour.com/editorial/a-facetious-view-of-the-copyright-debate/

  • 4 tdrecordable Feb 22, 2010 at 1:36 pm

    I think that one of the ways that artists and lawyers alike tackle silly problems like this is taking the argument back down to its mechanical truth. If Men at Work were more clever about this they would have focused on the theoretical aspects on the music itself.
    there is a good post here.

    http://theverlaines.co.nz/blog/view/id/411

    … For how much, in truth, has “Man Down Under” passed itself off as the Kookaburra song? Rhythmically identical for one bar is a given. But because they did not hire a musicologist, (or hired a poor one), they obviously failed to mount any decent argument about the differences. The song in its original guise has a childlike simplicity to it (it was written for a Girl Guides competition after all) and begins on scale degree 5 in a major key and utilises the pentatonic version of this scale in the bar in question….

    … But the Men at Work song is in a minor key and the flute melody begins on scale degree 7 relative to it. Whilst it shares pentatonicism … with the “Kookaburra” song, it is in its expressive demeanour, quite different.
    .. end quote ..

    Similar things have been done with the use of Schenkerian Analysis to prove that all music is basically the same so everyone is ripping everyone off anyway. If you are willing to enter the wonderful world of creative subversion, all these copyright issues are able to be dealt with.

  • 5 Alison Croggon Feb 22, 2010 at 2:30 pm

    There is a statute of limitations on copyright – 50 years after the creator’s death. That seems quite fair to me. (Though isn’t there a campaign – by Disney I think – to extend it by another 25 years?)

    What there needs to be is a more proportionate and commonsense application of the “fair use” rule. It seems to me pretty staggering that this case couldn’t get through on fair use.

    Artists need intellectual copyright, because it is the only way they make their living, but it’s been hijacked as a concept by corporate interests – who certainly don’t have the interests of artists at heart. For another view on the issue, have a look at the Google Books Settlement, which is a corporate grab if ever there was one, and which has serious implications for writers because it basically overturns the Berne Convention. And which looks as if it will go through.

  • 6 john walker Feb 23, 2010 at 3:40 pm

    Marcus I totally agree. Copyright is being used for purposes that are an abuse (and violation) of copyright. Copyright and patents developed in the C19 as a way of protecting small traders and their creations from abuse by the powerful. They are rightfully : ‘ individual rights of control of usage’, not powers of Groups.
    Alison the GBS is not a done deed , It is possible that it may continue to spin on its paradoxical – impossible premiss.
    Or it might yet become an opt-in rather than opt-out arrangement, time will tell.

  • 7 Bin Bert Mar 1, 2010 at 4:36 pm

    Marcus – the great insight this case has shown people is that the music copyright in Australia is not as it seems.

    Over the (25) years I have seen the Australian Performing Rights Association collect and distribute money on behalf of music copyright holders. Although they tell us it is on behalf of the composers – how much gets to the actual creators – not the publishing companies? Is it all the creators – or just the members of APRA? But do they collect on behalf of all composers – like my local Deli was told. What percentage of composers in Australia are APRA members? How much is spent on their admin and awards? How much is sent overseas to the copyright holders – such as Michael Jackson.

    Is there a net benefit to all Australian composers?
    It would make an interesting pie cart – I get their yearly report – but never this break down.

  • 8 john walker Mar 4, 2010 at 8:15 am

    Bin Bert
    this is about the reality of the ‘authors’ copyright group CAL,http://www.theaustralian.com.au/news/arts/copyright-staff-get-more-than-they-give-to-authors-and-artists/story-e6frg8n6-1225831556653
    The figures in the report are some what different to the figures CAL gave in its annual report.

  • 9 samanta ray Mar 4, 2010 at 12:23 pm

    love your articles marcus, thank you very much, i’m subscribing :-)

    have a great day.

  • 10 Shaun Mar 13, 2010 at 9:25 am

    Copyright was life of creator + 50 years however it was extended to life + 70 in 2007 when the Copyright Act 1968 (Cth) put in force provisions in the FTA with the US. I don’t have the time to research the proclamation date for the amendment of the copyright act putting this in force although I am sure it will be a day in 2027 that will receive a lot of attention and should be marked with a number of copyleft parties.