Men at Work sued

[wildone]

I was watching the Craig Ferguson Show tonight, and was shocked and surprised when Russell Crowe mentioned that Men at Work was being sued by the copyright holders of the Kookaburra Song for their biggest hit Land Down Under 29 years after the song was released

 

I'm dating myself, but I remember singing the Kookaburra song in elementary school and then loving Men at Work's Land Down Under in the 80's. I never put the two together.

 

Funny how after all this time the riff that I enjoyed so much turns out to be a childhood song I liked.

 

 

One Version of Kookaburra song

 

http://www.youtube.com/watch?v=DNT7uZf7lew

 

Men at Work singing Land Down Under

Listen to the flute riffs

 

Why did it take 29 years to notice this? Should they be able to sue? Isn't this the same as using the Happy Birthday song?

 

(and yes, you can file this all under useless trivia )

[thatboyChase]

kookabura sits in the old gum tree.... yeah like 3rd grade australia day, I remember. Plus Land Down Under is an awesome song.

[Nephylim]

I'm sorry, I must be musically challenged but I can't see it at all. The Men at Work song is so compltely different. The sound is not in any way similar and... okay there is a flavour IF you know what you're looking for but I would be very surprised if they stole the riff or even knew it was from that song.

 

There are lots of riffs in lots of songs which sound a bit like or very much like riffs in other songs. I always believed that if you take someone else's creation and drastically rework it usuing your skill then there is no action available. The example we were given in Law School was the Constable Painting that was used 1. on a chocolate box lid and 2. in a cross stitch. The chocolate box company was in breach because they simply reproduced it but the cross stitcher wasn't because she had radially adapted it and used her own skills in reworking it.

 

I would suggest that this is what happened here and if this case were brought in the UK it would fail

[TalonRider]

One of my favorites was Who Can It Be Now.

[JamesSavik]

They would probably have better luck suing Michael Jackson's estate. He was known to steal a song and settle lawsuits.

[Demetz]

Haha, I totally mistook this as a reference to a porn site.

[Graeme]

I'm sorry, I must be musically challenged but I can't see it at all. The Men at Work song is so compltely different. The sound is not in any way similar and... okay there is a flavour IF you know what you're looking for but I would be very surprised if they stole the riff or even knew it was from that song.

Sorry, everyone, but the court case on the subject finished in early February 2010 and the judge decided that they had incorporated two bars from Kookaburra Sits In The Old Gum Tree in the flute riff.

 

"Two bars, is that all?" I hear you cry. Well, yes, but that entire song only has four bars, so that's 50% of the song. That's way more than fair use allows. Copyright laws look at how much of the work was copied, not the size of the work it was copied into, so this is a sizeable 'theft'.

 

The judge, in his ruling, said that he took into account the fact that one of the band members had admitted to sing the phrases from 'Kookaburra' in some concerts, rather than the official lyrics, and that the person who did the flute riffs chose that music to add to the 'Australian' flavour.

 

There's no reasonable doubt that the two bars were inserted deliberately. Yes, it doesn't really sound the same in the song, but when you look at the printed score, there's no doubt it's the same two bars.

 

Last time I checked, the judgement had been made, but no penalty had been assigned. The judge was still deciding that. The music company that owns the copyright was asking for 60% of the royalties, but I hope they don't get that. The riff in question is only a very small part of the whole song, though admittedly a very memorable part. I'm hoping the judge limits it to something like 10-15% of royalties by looking at the percentage of the total song, and then applying a penalty factor for not acknowledging copyright when they originally took 50% of the 'Kookaburra' song.

 

I've included a link to a news report above, but I remember tracking down the actual text of the judge's ruling. It's available on the Internet... somewhere If people are interested, I can try to track it down again.

[...]

not after all this time maybe just an acknowledgement or some minor award... that song was huge it's not like they didn't know... they should have said something years ago like within 2 or 3 years certainly not past the statute of limitations!

[Trebs]

I had always thought the kookaburra was an old folk tune... Had no idea it was so recent that it would still be covered under copywrite.

[Graeme]

not after all this time maybe just an acknowledgement or some minor award... that song was huge it's not like they didn't know... they should have said something years ago like within 2 or 3 years certainly not past the statute of limitations!

I had always thought the kookaburra was an old folk tune... Had no idea it was so recent that it would still be covered under copywrite.

The song was written more than 70 years ago by a teacher, Marion Sinclair, for a Girl Guides competition. Mrs. Sinclair died in 1988 and Larrikan Music owns the copyright. One of the earlier decision in the case was to settle the copyright ownership, as it was disputed by the defendants.

 

If I recall correctly, the copyright expiration clock starts from the death of the creator of the work. In Australia, that will be either fifty or seventy years after their death, depending on when they die, so the copyright is still valid until 2058. From section 33 of the copyright act:

 

(2) Subject to this section, copyright that subsists in a literary, dramatic, musical or artistic work by virtue of this Part continues to subsist until the end of 70 years after the end of the calendar year in which the author of the work died.

 

Of course, I'm not a lawyer, so I may have my interpretations wrong

[glomph]

Isn't this the same as using the Happy Birthday song?

 

Yes, exactly.

 

Have you ever wondered why the waitstaff never sings "Happy Birthday to You" in restaurants? Now you know.

 

FWIW, I always recognized the Aussie song in the flute riff.

[Fishwings]

Haha, I totally mistook this as a reference to a porn site.

 

 

BWAHAHA. Just what I thought. I need some sleep.

[NaperVic]

I'm sorry, I must be musically challenged but I can't see it at all.

 

I can't hear the similarities either.

 

 

I'm dating myself...

 

I'm so happy you found someone Steve !

[wildone]

 

 

 

 

I'm so happy you found someone Steve !

 

 

That hurts Vic

 

 

 

Just kidding

[...]

The song was written more than 70 years ago by a teacher, Marion Sinclair, for a Girl Guides competition. Mrs. Sinclair died in 1988 and Larrikan Music owns the copyright. One of the earlier decision in the case was to settle the copyright ownership, as it was disputed by the defendants.

 

If I recall correctly, the copyright expiration clock starts from the death of the creator of the work. In Australia, that will be either fifty or seventy years after their death, depending on when they die, so the copyright is still valid until 2058. From section 33 of the copyright act:

 

 

 

Of course, I'm not a lawyer, so I may have my interpretations wrong

 

 

 

no no, i'm sure you're correct... intellectual property rights of course would be considered in court... i remember some of that when i was doing research into DRM or Digital Rights Management while playing with Yahoo Music Player among others. I was just thinking (or not thinking) that somewhere the statute of limitations was like 7 years for murder... or maybe that was for a bad debt? whichever, depending on what perspective you view it from... being sued after 39 years can seem absurd. But, then again, if I owned such property i'd too wish to be adequately compensated... so please forgive me, i failed to realize with whom i was speaking... as fine authors should, y'all perform research & have gained more respect from me, my bad... sorry

[Graeme]

no no, i'm sure you're correct... intellectual property rights of course would be considered in court... i remember some of that when i was doing research into DRM or Digital Rights Management while playing with Yahoo Music Player among others. I was just thinking (or not thinking) that somewhere the statute of limitations was like 7 years for murder... or maybe that was for a bad debt? whichever, depending on what perspective you view it from... being sued after 39 years can seem absurd. But, then again, if I owned such property i'd too wish to be adequately compensated... so please forgive me, i failed to realize with whom i was speaking... as fine authors should, y'all perform research & have gained more respect from me, my bad... sorry

No forgiveness required As there was an offense committed, but it was so long ago, it made sense to think that the statute of limitations would apply. Since the band is still getting royalties for that song today, it could be argued that there are new offenses being committed all the time, but the copyright laws are the major factor, not the statute of limitations.

 

As for why did it take so long for it to be picked up, the answer is that it came to the general public's attention during a TV music game show here in Australia. The show, Spicks and Specks asked a question about the similarity between the flute riff and the old folk song. Even there, the contestants weren't sure. However, the court case started soon afterwards. Yes, it's not obvious when you listen to the Men at Work's song, but it becomes clearer when you look into it further.

 

As an aside, that's a great show. They play for a large prize ($0) and as a consequence, they take the game as seriously as you would expect for that sort of prize money

[Graeme]

The judge has decided on the penalty for copyright breach. Rather than the 50% of royalties that Larrikin Music wanted, they'll get 5% of the royalties.

Justice Jacobson found the 50 per cent claim was "overreaching, excessive and in my view unrealistic".

 

The song, released in 1982, went to No 1 on the Australian, British and American charts.

 

Justice Jacobson said that when calculating the percentage payable he had to look at the weight of "the significance of the bars of Kookaburra to the overall musical qualities of Down Under".

 

That's actually less than I had guessed. I was expecting about 10%, with part of that being the penalty for the breach. As it is, there doesn't appear to be any punitive penalty applied -- just paying the backdated royalties and any future royalties.

[Trebs]

WOW - a sane judge ;-)

[wacko9001]

wow... why wait 29 years...