Men at Work lose in court Down Under

news.com.au ^ | 8th October 2011 | Kristen Gelineau

[naturalman1975]

AUSTRALIAN band Men at Work lost their final court bid to prove they did not steal the distinctive flute riff of their 1980s hit Down Under from a children's campfire song.

The High Court of Australia on Friday denied the band's bid to appeal a federal court judge's earlier ruling that the group had copied the signature flute melody from the song Kookaburra Sits in the Old Gum Tree.

Kookaburra was written more than 70 years ago by Australian teacher Marion Sinclair for a Girl Guides competition. Sinclair died in 1988, but publishing company Larrikin Music - which now holds the copyright for Kookaburra - filed a copyright lawsuit in 2009.

Last year, Federal Court Justice Peter Jacobson ruled that the Down Under flute riff replicated a substantial part of Sinclair's song. The judge later ordered Men at Work's recording company, EMI Songs Australia, and Down Under songwriters Colin Hay and Ron Strykert to pay five per cent of royalties earned from the song since 2002 and from its future earnings.

[Charles Martel]

Ron Strykert, rhythm guitarist, is a good friend of mine. He said they did not copy the flute riff from “Kookoobura”, but admits it is similar, but only coincidental.

IIRC, only the second half of the riff sounds like "Kookoobura", but it appears that was enough.

Back when that song was released (and given the lyrics), I figured that part of the melody was an homage to some old Australian folk tune. I recognized it, but didn't recall its name (I'll bet it was featured years before on some U.S. children's show such as Captain Kangaroo.

Uh oh... I hope "The Captain" had his stage name cleared through the network legal department.

[naturalman1975]

To try and explain this in American terms.

Imagine the riff in question being the tune of Yankee Doodle - a traditional American tune that any American is likely to instantly recognise. Specifically, the bit around "Stuck a feather in his hat."

Now, imagine if the band in question had released a video clip that not only had one of the musicians playing that riff, but at exactly the same time, he was putting a feather in his hat.

Would you find it hard to believe that was just coincidence?

That is the situation here - Kookaburra isn't as old, but it's been a standard song virtually all Australian children have learned early in their school days since the 1940s. It's been a campfire song since that time as well. Virtually any Australian will instantly recognise it.

And in the Men at Work videoclip, the person playing it most noticeably is a flautist sitting in a gum tree - and the line is "Kookaburra sits in the old gum tree."

Maybe when they wrote the song, it was unconscious - but by the time they made the film clip they knew what they were doing.

The aural comparison is here at youtube.

The videoclip - the guy in the gum tree is at about the 50 second mark.

[the invisib1e hand]

Not supporting plagiarism, but American music “borrows,” legitimately, all the time — it’s an artistic device, not a substitute for an original idea.

[WL-law]

Damages are 5% of royalties, backdated to 2002.

File sharing was in full swing in 2002. So 5% of nothing is ????

The plaintiff’s lawyers fees were probably collected as well — they were likely the real winners.

[abigkahuna]

i am surprised that that doesn’t happen more often. With the plethora of record music in our brains, I can see how easy it would be for an artist to think they are composing something original, but in fact is influenced subconsciously by some other recording.

[SkyPilot]

My favorite band of all time, Led Zeppelin, were BIG TIME music thieves.

______________________________________________________________________

"Babe I'm Gonna Leave You" - A folk song by Anne Bredon, this was originally credited as "traditional, arranged by Jimmy Page," then "words and music by Jimmy Page," and then, following legal action, "Bredon/Page/Plant." "Black Mountain Side" - uncredited version of a traditional folk tune previously recorded by Bert Jansch. "Bring It On Home" - the first section is an uncredited cover of the Willie Dixon tune (as performed by the imposter Sonny Boy Williamson). "Communication Breakdown" - apparently derived from Eddie Cochran's "Nervous Breakdown." "Custard Pie" - uncredited cover of Bukka White's "Shake 'Em On Down," with lyrics from Sleepy John Estes's "Drop Down Daddy." "Dazed And Confused" - uncredited cover of the Jake Holmes song (see The Above Ground Sound Of Jake Holmes). "Hats Off To (Roy) Harper" - uncredited version of Bukka White's "Shake 'Em On Down." "How Many More Times" - Part one is an uncredited cover of the Howlin' Wolf song (available on numerous compilations). Part two is an uncredited cover of Albert King's "The Hunter." "In My Time Of Dying" - uncredited cover of the traditional song (as heard on Bob Dylan's debut). "The Lemon Song" - uncredited cover of Howlin' Wolf's "Killing Floor" - Wolf's publisher sued Zeppelin in the early 70s and settled out of court. "Moby Dick" - written and first recorded by Sleepy John Estes under the title "The Girl I Love," and later covered by Bobby Parker. "Nobody's Fault But Mine" - uncredited cover of the Blind Willie Johnson blues. "Since I've Been Lovin' You" - lyrics are the same as Moby Grape's "Never," though the music isn't similar. "Stairway To Heaven" - the main guitar line is apparently from "Taurus" by Spirit. "White Summer" - uncredited cover of Davey Graham's "She Moved Through The Fair." "Whole Lotta Love" - lyrics are from the Willie Dixon blues "You Need Love."

_______________________________________________________________

But, at least they were kick behind musicians.

Today, we have ghetto rip off goofballs like "The Black Eyed Peas" who make a bajillion dollars a year and rip over everything. On top of that, their music still sucks.

[trumandogz]

It’s a Mistake

[mkmensinger]

Typing disability.

[dfwgator]

I thought the lawsuit was Overkill.

[Drumbo]

Sinclair died in 1988, but publishing company Larrikin Music - which now holds the copyright for Kookaburra - filed a copyright lawsuit in 2009.

So it took'em over 20 years to file suit?

The article states that Larrikin wasn't able to seek royalties earned before 2002 because of a statute of limitations, but evidently there's no statute of limitations if you wait around until Colin James Hay's career takes off again and then sue him over a snatch of song he probably didn't even compose since Stu Hamm played the flute part. It's an eight second solo section that was under scrutiny, the longer, second flute solo bears no resemblance to "Kookaburra". That they can snatch 8 seconds from a 3:28 song twenty years after the fact is an outrage.

Did Joe Walsh sue Deep Purple when they ripped off "Meadows" and called it "My Woman From Tokyo?"

Did Alex Van Halen sue Tone Loc when he ripped off "Jammie's Cryin'" for "Wild Thing"?

Did The Chiffons sue George Harrison when he ripped off "He's So Fine" for "My Sweet Lord"?
... oh wait, well never mind.

[dfwgator]

If copping phrases from popular tunes is now actionable there are a whole lot of jazz musicians in trouble.

What about the Byrds copping Coltrane's "India" on Eight Miles High?

[InvisibleChurch]

Did Joe Walsh sue Deep Purple when they ripped off "Meadows" and called it "My Woman From Tokyo?"

HA! Did Martin Barre sue Joe Walsh for his guitar lick on We Used To Know that Joe used on Hotel California? How can music NOT be stolen?

[RitchieAprile]

Gallows Pole might be another. But again they did a kickbutt
job with it, especially the mandolin part.

[Billthedrill]

I will confess I didn't recognize that one and I'm familiar with both tunes. Wow, you're right. 5% of Eight Miles High is a lot of loot. Wonder if anyone owns 'Trane's copyrights...

[HiTech RedNeck]

If some skunk really wants to foul the punchbowl, all he needs to do is load a computer up with songs from the top 40s or whatever, and program the darn thing to look for melodic duplicates between them. Then breathlessly clue in the owner of the earlier copyright where duplicates exist.

[glorgau]

Copyright over 30 years is ridiculous. At that point, the artist should make something different and not retire for lack of incentive. At the very least the “heirs” should profit little to none.

[ari-freedom]

Kookaburra sits in the old gum tree
Merry, merry king of the bush is he
Laugh, Kookaburra! Laugh, Kookaburra!
Gay your life must be

[TheOldLady]

Click the Pic               Thank you, JoeProBono

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[Rennes Templar]

“I do think there’s a real question as to whether or not the presence of the riff in the song is significant enough to comprise plagiarism...”

We just live in a litigious society... 5 secs of “stolen” material...and they want how much?

http://www.youtube.com/watch?v=Av7tOiq-aw8&feature=related

[Revolting cat!]

Everything’s upside down down under!