Pesky kookaburra drops one on the debate over copyright law; Sydney Morning Herald, 2/5/10

Richard Ackland, Sydney Morning Herald; Pesky kookaburra drops one on the debate over copyright law:

"In case you'd forgotten the words, I'll reproduce in its entirety this charming ditty so that we sing along together, preferably in rounds:

Kookaburra sits on an old gum tree
Merry merry king of the bush is he
Laugh kookaburra, laugh kookaburra
Gay your life must be.

Quite so. This iconic four-bar slice of Australiana was composed in 1934 by Miss Marion Sinclair, who entered Kookaburra in a competition conducted by the Girl Guides Association of Victoria. Much later, Larrikin Music Publishing came to acquire the copyright in Miss Sinclair's musical work.

Countless people throughout the world studiously missed elements of Miss Sinclair's tiny masterpiece that turned up in Men At Work's much more ''layered'' pop song Down Under. In fact, nobody seemed to recognise that there was a flute riff, or hook, in Down Under that bore some similarity to two bars of Miss Sinclair's music. This might suggest that the objective similarity between the two pieces of music was remote. The first public outing of the connection came on the ABC's musical quiz show Spicks And Specks in 2007.

Even then, the panel of experts had some trouble making up their mind as to whether the similarities were sufficiently strong.

Not so, said Justice Peter Jacobson in the Federal Court yesterday. The Larrikin Music people brought proceedings against EMI Songs Australia, which holds the copyright in Down Under, and the two composers of the music and words, the former members of Men At Work Colin Hay and Ron Strykert.

Even though there was evidence that the pitch, key, rhythm, melodic shape, harmony, musical sentences and context are different, Justice Jacobson found that there was nonetheless a reproduction of a substantial part of Kookaburra in Down Under. This is not to say that Kookaburra amounted to a substantial part of the pop song.

Musicologists of the utmost fame were called to give evidence. In one corner, for Larrikin, was Dr Andrew Ford, a leading musical voice on the ABC. In the other corner was Martin Armiger, the head of screen composition at the Australian Film Television and Radio School. It was all highly technical stuff, but in the end largely a matter of interpretation.

Both pieces of music evoke quintessential Australianness. On the one hand gum trees, kookaburras and gayness. On the other Vegemite, ''fried out'' Kombis, koalas and beer. All that seems to be missing are corks on Akubras.

The truth is that all creative endeavour involves a degree of borrowing, lifting, and plundering. The artistic process is a constant process of altering, refining and reinterpreting something that someone else did first.

Where did Miss Sinclair's idea come from? Were bits subconsciously snaffled from other poets? It seems odd to suggest that something can be utterly original. Certainly Men At Work acknowledged that they drew inspiration from Barry Humphries's character Barry McKenzie and his stereotypical Aussieness.

Fortunately, there is growing awareness of the downside of an overly protective view of intellectual property and its ''locking up'' of ''original'' ideas and research. It has the potential to stifle much scientific and creative endeavour.

While one judge was squeezing tight the copyright regime, another judge of the same court on the same day was letting it all hang out.

Justice Dennis Cowdroy rejected claims by a huge global clutch of film and television studios that Australia's third-biggest internet service provider, iiNet, was infringing their copyright by allowing its customers to download movies from the internet.

As the judgment stands, this is a significant decision. The movie industry was anxiously hanging on the outcome; now it's back to the drawing boards and no doubt an appeal.

So ISPs are not obliged to police their customers' copyright infringements. This is the case even where the ISP has been notified of customers' alleged infringement and doesn't disconnect them.

Maybe the applicants were suing the wrong entity. The open source file-sharing software that allows this downloading, which is called BitTorrent, came in for a lot of discussion in the proceedings and it's clear that without BitTorrent none of this private extraction of movie titles would be possible.

What the applicants, led by an outfit known as the Australian Federation Against Copyright Theft, contended was that this was a big setback for the 50,000 or so people employed in the Australian film industry.

That sounds like an understandable bit of special pleading, but what it does suggest is that the movie industry has its finger in a very leaky dyke as it clings to the traditional distribution model.

In its heyday the movie studios, the distributors and exhibitors formed one of the most ruthless enforcers of a cartel structure that the world of anti-competitive conduct has seen.

Things have moved on a little bit since then and they have a long way to move still.

The movie industry is in the same position that the music people were in before they got into bed with iTunes and Apple.

All the great media industries will have to find ways to work with the new modes of distribution. To work against them ultimately will spell ruin. This applies not only to movies, but to books, newspapers and magazines. It doesn't necessarily mean an end to 50,000 jobs at all. It could mean selling titles more cheaply to more people in different ways that expand employment.

Of course, the lawyers won't be out of a job. There is the smell of appeal in the air, with ultimately the High Court having to grapple with the new, new world."

http://www.smh.com.au/opinion/society-and-culture/pesky-kookaburra-drops-one-on-the-debate-over-copyright-law-20100204-ng23.html

Lawyers sue, men plunder; Sydney Morning Herald, 11/2/09

Sydney Morning Herald; Lawyers sue, men plunder:

A throwaway line in a television quiz show was the prelude to a multimillion-dollar court battle that could change the way musicians go about creating music, writes Joel Gibson.

"The courts have been reluctant to interpret copyright law too heavily against new works, she said, for fear of stymying creativity - but the music industry will be anxiously awaiting the outcome of this case.

''It does create uncertainty about how people can reference other songs … It means you can never have a thought or write a song without looking over your shoulder. Musicians would have to start retro-fitting their songs with some kind of analysis.''

McKeough said the protection of creative works had to be balanced by the knowledge that ''nothing is truly original, there are so many songs in the world''.

http://www.smh.com.au/news/entertainment/music/lawyers-sue-men-plunder/2009/11/01/1257010103921.html?page=4

Down Under musician says he's dinkum; Sydney Morning Herald, 10/30/09

Joel Gibson, Sydney Morning Herald; Down Under musician says he's dinkum:

"Larrikin Music Publishing, which owns the rights to Kookaburra, is suing Hay and Strykert and their publishing company, EMI, claiming they reproduced more than half of Kookaburra and made a small fortune from it in royalties, licences and sheet music sales.

Larrikin wants 40 to 60 per cent of income earned from Down Under in future and in the past six years, which is as far back as the law allows. But the authors and EMI say the use of the Kookaburra melody was unconscious, and is a fair adaptation under the Copyright Act.

Even if it was an infringement, they argue Larrikin is ''over-reaching'', saying many of the 20-plus versions of the song do not contain the flute riff."

http://www.smh.com.au/lifestyle/people/down-under-musician-says-hes-dinkum-20091029-hnr1.html

Down Under riff based on folk song, court hears; Sydney Morning Herald, 10/27/09

Joel Gibson, Sydney Morning Herald; Down Under riff based on folk song, court hears:

http://www.smh.com.au/news/entertainment/music/down-under-riff-based-on-folk-song-court-hears/2009/10/27/1256405382225.html

Men at Work loses first stage of copyright lawsuit; Boston Globe, 7/30/09

Kristen Gelineau via Boston Globe; Men at Work loses first stage of copyright lawsuit:

"A music publisher that has accused Australian band Men at Work of stealing the melody to their 1980s smash hit "Down Under" from a campfire song won the first stage of its lawsuit on Thursday seeking royalties from the Aussie anthem.

A federal judge ruled that publisher Larrikin Music owns the copyright to the tune of "Kookaburra Sits in the Old Gum Tree" -- a Girl Guide favorite from New Zealand to Canada. The judge's ruling clears the way for a further hearing about whether Men at Work is guilty of copyright infringement.

Larrikin claims the distinctive flute riff in "Down Under" was copied from the refrain of "Kookaburra," a song about the native Australian bird written in 1934 by a teacher named Marion Sinclair for a Girl Guides competition. Sinclair died in 1988.

Lawyers for Men at Work's recording companies -- Sony BMG Music Entertainment and EMI Songs Australia -- reject that claim."

http://www.boston.com/ae/music/articles/2009/07/30/men_at_work_loses_first_stage_of_copyright_lawsuit/

Video: Land Down Under ripoff claim; Sydney Morning Herald, 6/24/09

Video [1 min. 53 sec.]: Was Men at Work's Land Down Under ripped off children's classic 'Kookaburra Sits in an Old Gumtree'? Listen and see via Sydney Morning Herald; Land Down Under ripoff claim:

http://media.smh.com.au/national/national-news/land-down-under-ripoff-claim-601909.html