Kookaburras sitting on an old gum tree, interfering with creativity
February 5th, 2010 by Robert Merkel | Published in Art, Culture, Law | 198 Comments
It’s official; Men at Work ripped off Kookaburra in the flute hook of Down Under. ABC story here. You can read the actual judgement here.
I’m completely unsurprised with the judge’s findings. But, to me, it shows that copyright, as is currently constituted, has become a monster that serves few except for a small number of very large multinational corporations, and has-been musicians and their inheritors.
Having worked on free software for years, and having read a fair bit of the work of Lawrence Lessig, it seems to me that the primary purpose of copyright law should be to encourage the creation of new work. To encourage that work, the law afford them a limited right to gain the profits from its performance or distribution, while protecting certain forms of reproduction of the work, or works derived from it. Those certain forms have little connection with the actual level of “innovation” involved – the author of a join-the-dots Mills and Boon novel has their words protected; Picasso and Braque never sued the innumerable artists who used cubist techniques. In a more directly relevant context, nor did Phuture have the right to sue every half-arsed house music act who abused a Roland TB-303. But, be that as it may, we have evolved a system where melodies and chord progressions, as well as the actual recorded sound, are guarded by the sledgehammer of the law for inordinate periods of time.
As currently constituted, copyright law grossly inhibits creativity by, effectively, locking up forever some forms of borrowing, the same borrowing from the past that creative artists have being making use of since the second cave artist had a look at what the first was up to and tried their own take on it.
So how is this to be remedied?
Shortening copyright terms to something approaching their original length – perhaps 20 years or so – is one solution. But, beyond that is the question of the right to create derivative works. At the moment, as I understand it, copyright owners have the unfettered right to prevent others from creating derivative works of the thing they hold copyright for.
I’d suggest that they don’t need or deserve that right. As long as they get paid, I don’t see why the rights holders of Kookaburra should be able to prevent Men at Work from using parts of the melody. I don’t see why the Beatles should be able to restrict moviemakers setting their plots in the 1960s from using Beatles tracks to create a historically realistic soundscape. And if Westfield wants to turn Joni Mitchell’s Big Yellow Taxi into an advertisement for their shopping centers, well, good luck to them. Or, in the filmic domain, if somebody wants to commercially release a Trek slash fiction film, or, for that matter, a filmed version of Catcher in the Rye, I don’t see why the original rights holders should be able to stop them.
NOTE: I wrote this in rather a hurry, and it doesn’t make the point clearly that Larrikin aren’t seeking to stop the distribution of Down Under. But, as I understand it, they have that right, and as such would have been in a position to suppress the distribution of Down Under (at least the version with the borrowed flute hook) from the beginning if they’d so chosen.
Elsewhere: Lauredhel argues that the judge got it wrong. Skepticlawyer has an interesting take, arguing that this kind of decision causes a loss of general respect for IP law more generally – with the consequence that somewhere down the track citizen disgust might led to its wholesale revocation, even the useful bits.
Update: Warren Fahey, original owner of Larrikin Music, has popped up in comments and reconfirmed what others on the thread have pointed out: he sold Larrikin Music long before this case began, and it is now owned by by Music Sales, a multinational publishing giant.
Warren Fahey, a folk music artist, owns Larrikin Music and the copyright of “Kookaburra sits in the old gum tree”.
I would like to know when Larrikin Music bought the copyright. Was it before Men at Work recorded “Land of Plenty” in 1981?
From the Sydney Morning Herald
“Larrikin claims it had won a tender for the copyright for Kookaburra from the South Australian Public Trustee in 1990, after Ms Sinclair died.”
see http://www.smh.com.au/news/entertainment/music/riff-row-leaves-men-at-work-up-a-legal-gum-tree/2009/06/24/1245522882151.html
Sorry about that Colin Hay and Rob, looks like Warren Fahey was being opportunistic.
What a lafff….
Around this issue, any thoughts on the recent Aborignal Flag controversy with Google? http://www.news.com.au/technology/google-erases-aboriginal-flag-from-australia-day-doodle-on-homepage/story-e6frfro0-1225823647182
Copyright law is now a rampaging monster, stoopid and totally out of control. The song “Happy Birthday” is apparently copyrighted for royalties by Warner until 2030 for chrissakes.
There is a respectable argument to be had that all art is derivative. Take a look at a sample of African tribal masks, and then another look at Les Demoiselles D’Avignon. Picasso knew exactly what he was doing, and he paid no royalities to the Congo.
As for Kookaburra and the riff in Down Under, what a pathetic joke.
I’m not sure I would go all the way with you on this one Robert. I do think, for example, that if Salinger saw the integrity of his work as being compormised by commercial exploitation, he ought to be allowed to insist on people desisting from putting it on t-shorts and so forth.
That’s not what has happened here of course. Here, resort to copyright has been purely opportunistic. AIUI Larrikin acquired the rights for a song ($6k), pun intended, and is now relying on a very vague thematic similarity to assert infringement.
IMO, the similarity was vague enough for nobody to notice it for most of the time both tunes were current. Really, if the two works are sufficiently distinct that no clear allusion exists and particularly if the target audiences are separate, then I’d be inclined to throw the case out and award costs against the plaintiff.
Kookaburra sits in the old gum tree is an iconic tune. It has almost certainly been used by every public school at a school performance since its first iteration without copyright payment or even acknowledgement. I recall being in a cbhoir at West Ryde PS in 1965 and singing it. The rights, if any attached, long ago expired.
If that view is rejected then in extremis, I might be willing to allow that Larrikin should get their 6K back, plus a royalty based on the proportion of notes in Down Under that it accounts for divided by the number of years Larrikin held the rights and didn’t claim.
By not suing the great Irish art forger, who labelled his copies “Pissarco”
:-)
“Larrikin” has no business trading under the name.
UnAustralian.
Some people would say it is disturbing that the judgement can go in favour of Larrikin when(see paras 75 to 84 and 180 to approx 210 and accompanying pictures)
a) the notes in the two songs are not the same
b) the rhythm of the two songs/riffs is different, and
c) the syncopation is not the same
It would appear Larrikin may have been lucky
Martin and I beat you to it: http://larvatusprodeo.net/2009/06/25/are-kookaburras-on-a-hippie-trail-full-of-zombie/#comment-855453
But you really think movie studios should be able to adapt a book to a film without paying the author of the book?. Or that Universities should just photocopy parts out of textbooks and sell them themselves, without paying the authors of the textbooks? That large corporations can exploit somone’s work, without paying that person anything?
“I don’t see why the Beatles should be able to restrict moviemakers setting their plots in the 1960s from using Beatles tracks to create a historically realistic soundscape. And if Westfield wants to turn Joni Mitchell’s Big Yellow Taxi into an advertisement for their shopping centers, well, good luck to them.”
Neither of these would be derivative works. That’s just simple reproduction of copyrighted works. In the first example you might be looking at something that should be fair use (depending on the context of the reuse). For the second, you’d still want some sort of permission as Joni Mitchell might claim that Westfield is implying that Joni Mitchell has endorsed their shopping centers, which might be defamatory and or a breach of the trade practises act.
I agree the ‘Kookaburra’ case is just ridiculous. But, I can’t go all the way with you on this. There’s ethical considerations, as well as financial considerations at work here. I make documentaries, sometimes for broadcast television, sometimes for other markets. I’ve used a creative commons licence occasionally when I thought appropriate, but usually not.
Making those documentaries involves developing relationships over time with the doco participants, so that they trust me to tell their stories. The danger in letting other people have access to that footage to use in whatever way they want, means that those people might be hurt, ridiculed, abused by the way that footage could be re-cut, used in mash-ups etc. I actually have responsibility to those people for the way their represented.
For instance, I produced a doco about the Van Nguyen case (if you remember, he was the man who was executed in Singapore for drug trafficking). His family let us film the in their most personal moments. Something they wouldn’t let anyone else do. They were protected by the fact that we owned the copyright to that footage and no-one else could use it. If it could be re-used by anyone in any way, then that would be potentially disastrous for them.
Men At Work should have hired this dynamic husband and wife duo.
Re #1:
Source
will there be a stampede to copyright chord progressions?
If Australian law included ‘fair use’ along the lines of the US, Larrikin might have had a much harder time of it.
d
Cacambo #13, the courts will have a merry old time trying to sort out who really first came up with G-Em-C-D.
Ridiculous judgement. Most of rock’n'roll is based on three or four chords and three or four standard chord progressions. The worst you can say about the Men at Work song is that it referenced a motif from the Kookaburra song. If that is a breach of copyright, most music (and most art) should be in the dock.
Sloop John B was adapted by the US folkie group The Kingston Trio from a Caribbean folk standard. Then Larry Weiss “borrowed” the melody for Rhinestone Cowboy, sung by Glen Campbell. Aussie rockers Jet ripped off the intro for their Are You Gonna Be My Girl from Iggy Pop’s Lust for Life. The Dandy Warhols borrowed from The Rolling Stones who borrowed from Muddy Waters and Howlin’ Wolf.
Then there’s the endless variations of the Wild Thing/Louie Louie/Twist and Shout three chord thing.
There’s nothing new in music. It’s just variations on a theme.
(comment crossposted at SL)
IP is a toss. The constant efforts to force feed us the utterly constructed link between the moral value we place on respecting people’s corporeal property and the preservation of monopolies on particular ideas is crude, even offensive.
This case is grasping and offensive, larrikin records deserve some backlash.
I just don’t get how that flute riff can be seen as theft of ‘the expression of the idea’ in KSITOGT. 10 notes are the same, but in the latter the melody is immediately repeated a major third below, the two lines working together to create the melodic effect, while in Down under it is the climax of a bridging riff that then resolves into an almost unrelated verse.
But I’m sure the judge involved had as much of a musical ear as Barwick had an eye for art.
Further to me #15 and Mr Denmore #16, one of my favourite musical diversions is to segue seamlessly between “Stand By Me”, “Unchained Melody”, “Joey” and “I Will Always Love You” with the chord progression I mentioned before.
One wonders whether Trevor Lucas is planning to claim for s share of Paul Kelly’s royalties from “To Her Door” which jogs through the same three chords in the same order and at the same tempo as “Poor Ned”.
Commonly known as the “I-VI-IV-V” or Doo Wop progression.
#11: Heh heh. Carthago can haz delenda estne?
I quite agree that “intellectual property” is a load of rubbish, and all creative work should be available for free. And for the exact same reasons, all academic tenure should be completely abolished, since academics are merely teaching/researching/discussing ideas and materials which were developed by others, mostly now dead. In fact, all academics should work for free. Except for those in the social sciences, who should not only work for free, but also pay for the privilege. Long live the revolution and stuff. Right?
Let’s not focus on the overzealous interpretations of a particular judge. The heart of the problem is the extraordinary length of copyright – it is far, far longer than is needed to serve its purpose.
No-one writes a song, makes a documentary, etc for the prospect of financial reward to their remote descendents. In fact given people’s (and corporation’s) normal discount rate any prospect of earnings after, say, 20 years from the work’s creation is just not going to enter into calculation at the time they are creating. So what purpose does copyright longer than that serve? Ms Spencer would still have written “Kookaburra”, Warner Bros would spend the same on making blockbusters as now, and Fine would be paid the same for those boutique documentaries.
Land Downunder is a song about Australiana. The borrowing of Kookaburra is intentional in my opinion. It is a musical reference to a piece of Australiana, just as “Vegemite sandwich” is a lyrical reference to another piece of Australiana. Vegemite is a trademark name, and it could be argued – by Kraft – that its mention is a breach of copyright too. That, however, is ridiculous. Most of us use the word as if it were public domain. Similarly, because schoolchildren have been singing it for decades, most of us would consider Kookaburra to be public domain. In any case, Land Downunder does not borrow the tune: it makes a sly reference to it as a piece of musical Australiana, as I said. This is fair use, in my opinion.
On a more philosophical level, copyright should expire with the death of the artist and their works should pass into the public domain. In that regard, Kookaburra should be regarded as public domain. I am inclined to agree with Robert that copyright should be limited to a shorter number of years. I would have said something like five to ten years. Larrikin deserve nothing. Neither does Kraft.
As for Fine’s point about the perceived need to control derived works in a documentary to protect those who participate, I’m somewhat sympathetic, but that is very far from what copyright was originally intended for, and isn’t exactly an appropriate instrument for the purpose.
For instance, there’s nothing in IP law stopping me doing a visual review of Fine’s documentary that includes scathing commentary on your interview subjects, and using clips to illustrate it under fair dealing. The protection available to the interviewees in this circumstance are under defamation law, not IP law.
silkworm @22:
Trademark law is not even close to the same thing copyright law.
That’s true, Robert. I can’t control what’s said. But I can control re-mixes and mash-ups. I’m not talking about opinion here, more malicious misuse of the work.
I also want to make money out of my work and most of that money comes from sales of the work, not the fees I’m paid to make it. No copyright, no royalties, no food on the table. This makes me biased, of course.
But, I also think copyright has become a ridiculously tight creative noose and it’s certainly being used in ways which weren’t originally intended. For instance, you need to get permission to use incidental music when you film in a public place (muzak in shopping malls etc). This seems to be ridiculous. If you have permission to film in the space, why shouldn’t recording the music used in that place be okay as well.
Fine, as noted, I’m not arguing for the abolition of copyright.
Like DD and others, I think the current terms are way, way, too long. Would it affect the viability of your documentary-making one iota if the copyright only lasted 20 years?
Actually, many small docos still earn money for their creators for more than 20 years. Try 50, I think.
Four chords.
Recently, a friend sold a 1990 produced doco to Discovery Channel for a few thousand dollars, for example. Docos can have very long lives and back catalogues are becoming more valuable because of the ubiquity of media. It’s a hungry beast, as they say. You’re never going to get rich by flogging old docos, but it all adds up.
Billie@1 and all: Reiterating GT@12, it can’t be said enough, that Warren Fahey no longer owns Larrikin Music, this is not down to him.’ I imagine he’s spitting chips at how the good name that he built for the businesses, and by extension his own name, (many, many people will like Billie believe Larrikin=Warren) is being trashed, right up there (qualitatively) in the lousiness stakes with James Hardie.
It’s Music Sales Australia, (& don’t fall for their ‘we’re the little guy’ dissemblage, they are really the branch office of a multinational octapus), via the local paid gollum, and his legal accomplices, who are the guilty parties here, stealing the lifeblood from 2 veins of Australia’s (shared) cultural heritage, folksongs of 2 generations. They have despoiled both.
Read ipwars.com version for legal chapter and verse. Especially note the comment that
“the 1932 lyrics were imposed by Marion Sinclair on a traditional old, very old, Welsh tune by Anon..So ironic that Larrikin was founded on bringing old Anon folk tunes to prominence”.
How Music
ParasitesSales Australia, in stealth mode as Larrikin, didn’t get laughed out of court with their claim that they owned any of the tune in the first place is beyond me, a working definition of a legal fiction.Our “Miss” Sinclair sounds like she has the makings of a dyed in the wool Patrick White anti-heroine, up there with Robyn Nevin’s Miss Docker. (Memo playrights out there: there be material in this faustian courtroom/corporate tale. Be sure to prominently display a “any resemblence .. entirely co-incidental” on the script, or they’ll sue your grandchildrens’ asses).
Apparantly “Miss Sinclair was closely involved in the Girl Guides movement .. she was well-known to the Guides”.. as in the ‘well-known’ local racing identity parlance perchance?.
So, although Rule D of the girl guides song competition (that kookaburra was our Miss Sinclair’s winning ‘entry’ in) was/is abundantly clear to all but the most devious of criminal/legal lurk merchants
Copyright’s not capital-M-Material? It wasn’t good enough for Jacobson J, who reckoned it a mistake to assume Miss Sinclair’s, and presumably the Guides’, honesty and/or diligence, he preferred to go with skulduggery and/or slapdashery, finding that Miss Sinclair never intended to pass the copyright to the guides. That’s why there’s no record of a signed entry form, ( nor I’ll bet a receipt for the 6d competition entry fee), only the equivocal manuscript with her signature and initials.
Indeed, Jacobson J. reckons the fact that
means that Miss Sinclair and the Guides pulled off an inside job, they let her win a competition she never really entered, which helped make the music a valuable property for Miss Sinclair, and then the Guides for a were in receipt of the kickback.
Who’da thunk it, Australia’s girl guides movement, in the middle of the depression, pulling off a rolled gold conspiracy like that? Miss Sinclair and Christopher Skase and Rene Rivkin must be having a good old chortle, wherever they are, saying “We can’t wait till Bondy gets here, he’ll love it, what with the part the song played in his grand scam …. Wonder if they’ll go after him, ‘cos he definitely got good value from it”
I’d also like to add patents to the mix as well. Not only do they share the problem of lasting way too long, but you can independently invent the same thing and still infringe even if you can prove you independently invented it.
Fine @ 27 – that may be true, but the benefit to the copyright holder also has to be balanced against the cost to the community after that many years – the inability to build upon what has been previously made (and often it can be next to impossible to contact copyright owners after that many years even if you have the resources to licence).
I don’t think a copyright term of around 10-20 years independent of whether the author is alive or not is unreasonable. Most people are expected to save the earnings from earlier years to fund their retirement or estate for their family.
One other change to copyright which would be beneficial is where there is a failure to supply (eg a book goes out of print) then third parties should be able to supply and just pay a statuatory amount to the copyright owner.
cowgirlwaxinglyrical @ 3 – I agree that Thomas has the right to stop people from using an image of his flag, but I think his approach has unfortunately sent a couple of messages he probably doesn’t want. That is, kids should not use the image of the aboriginal flag when entering art competitions as they do not have the right to do so. And that it will attract a whole lot less controversy for judges of art competitions to simply disqualify any art with the aboriginal flag in it rather than having to go through negotiations over licensing rights (with money which they probably didn’t budget for).
Its worth noting the conditions of entry for the competition required the signing over of all IP for the entry. So the original entry was probably technically invalid as the entrant did not have the right to sign over the copyright. Its just another example of where the copyright laws hold back creativity.
I agree with DD and Robert Merkel. I’m not arguing for the abolition of copyright (or the other IP regimes I discuss over at my place). My problem — with copyright especially — is the length. I’ve long thought it should expire when the creator expires, and I think that’s something that many people could live with ;)
The length of the monopolies conferred by and the draconian enforcement of IP law makes even us lawyers want to join the Pirate Party. What effect does it have on the average citizen?
I’d be prepared to guarantee I’d be able to find the particular sequence of notes at issue in Slonimski’s Thesaurus of Scales and Melodic Patterns if I could be bothered.
Too late for Larrikin to sue him, though.
skepticlawyer @ 32 – expiry on author’s death creates all sorts of incentives for other people that authors probably don’t want :-) A fixed number of years since publication is simple.
Chris @ 31 “Its worth noting the conditions of entry for the competition required the signing over of all IP for the entry”…
Not so, according to Jacobson J, who’s take on materiality is apparently that it doesn’t extend to IP, only the ink and the paper it’s printed on:
From IPwars.com, op cit:
So does the Law of Succession, alas. I think we can live with it. We’ve been living with succession for a fair old while, with only the odd kidlet bumping off their olds…
“For instance, you need to get permission to use incidental music when you film in a public place (muzak in shopping malls etc). This seems to be ridiculous. If you have permission to film in the space, why shouldn’t recording the music used in that place be okay as well.”
Because the people who gave you permission to film in the mall do not have the right to let you reproduce other people’s music in your film!
Did you know that when your films are shown in a cinema, the cinema owner has to pay APRA/PPCA a licence fee for publically performing the music in the soundtrack of your film?
d
danny @ 35 – not sure if you’ve seen section 12 on the terms and conditions page for the competition. But its pretty clear that Google wanted the IP rights assigned even if as you claim they didn’t get the wording right.
skepticlawyer – its not just that there will be an incentive to kill people but also to keep them alive on life support indefinitely. And I think it would be unfair if someone produces something valuable, publishes and then dies the next day resulting in they and their family not benefitting at all.
Fine: sure, but that’s not what I asked.
Say I offered you two deals when you’re planning to shoot a documentary.
Deal 1: I pay you $x for all future royalties from the documentary.
Deal 2: I pay you $y for all royalties from the documentary, from the period starting 20 years after the copyright date, to the expiration of copyright.
Now, what would be the relationship of x to y be?
My very strong suspicion is that y would be a tiny, tiny fraction of x.
From Wikipedia, a fun graph showing the extension of US copyright durations since 1790:
http://en.wikipedia.org/wiki/File:Copyright_term.svg
If the trend continues to be followed, they should be over 150-year copyright periods by the end of the century. Of course, that would just be ridiculous and could never happen. Right?
See also: list of works from 1953 which would have entered the public domain in the US this year (instead of 2049), if it hadn’t been for the 1976 copyright extension:
http://www.law.duke.edu/cspd/publicdomainday/pre1976
“My problem — with copyright especially — is the length. I’ve long thought it should expire when the creator expires, and I think that’s something that many people could live with”
Wouldn’t effect the outcome of this case though (except so far as Larrikin might not have purchased the rights). Down under was published in 1981 and Sinclair died in 1988, so there would still be seven years of potential infringement.
d
Do we have to pay APRA a fee if someone goes mad and sings and/or plays a song, a cover, live at a party, where not everyone is deaf, for, y’know, like free?
“a filmed version of Catcher in the Rye, I don’t see why the original rights holders should be able to stop them.”
What rights would you allow then? I mean if you can’t control whether or not someone can use you work then I’d say most other rights are lost. The right to decide whether you allow a work to be used at all would seem to stand over all other rights.
In a nutshell, the right to profit from your work. That’s pretty much it.
Oh, and the right to have your contribution acknowledged, obviously!
The idea, Darryl, is to make the system work as a defacto statute of limitations. It’s a long-standing equitable maxim — one that the common law has borrowed — that parties who sit on their rights lose them (it’s often referred to as laches in judgments, a lovely word that should be better known). Copyright allows people to navigate around this principle, to the detriment of the law generally.
The virtue of either (a) a term limit or (b) expiration on death is simplicity. Both have disadvantages, but these are greatly outweighed by their advantages over the current system. The disadvantages of term limits have been raised by Fine in her comments. Chris has addressed the disadvantages of expiration on death. In terms of legal reform, some economic modelling is necessary in order to work out which law hurts the least. No law is perfect, and very often attempts to ameliorate minor harms can have the effect of undoing the positive benefits that accrue to developing a simple ‘bright line’ rule.
Taking a preliminary view, I am more persuaded by Fine than by Chris. That is, I think that while the great author who writes something fabulous a year before his death loses out, the documentary film-maker who has another 30 years to live loses more, so I plumb for ‘expiration on death’. This is, of course, a preliminary view.
Skepticsaid:
Which puts me in mind of that Swedish chap who wrote that popular series of novels and then promtly died just recently …
Can’t recall his name but they were apparently very good …
Chris@38: My oops, wrong competition, I was still on the competition that the Kookaburra, (if I can use that word in good faith fair dealing without obtaining written permission), song was an entry for.
As noted, back then in the thirties, they had clauses like :”All matter entered to become the property of the Guide Association”, but it didn’t stand up as a valid copyright claim in Jacobson J’s court.
Robert, of course it will be earning less money 20 years+ after its production. But, if someone wants to use it, why shouldn’t they pay? I thought your original point is that its not going to be earning any money, therefore it’s no skin off the creator’s nose My point is that there’s still money earning potential.
SL suggests that copyright should lapse on the death of the creator. The problem with that in relation to film is, the owner of the copyright is usually a company, not an individual, so the death of the creator is irrelevant. Who exactly is the creator, after all?
Copyright lapses 70 years after a film’s production. It was 50 years until a few years ago when the Disney Company noticed that Mickey Mouse was heading into the public domain, so a law was passed (sponsored by Sonny Bono) to extend it to 70 years. Australia then followed suit. I think 50 years is plenty.
Its hard to see the Kookaburra litagation as any thing else but an opportunstic cash grab. Poor form imo.
The Google Flag issue a little more complex; arguably the flag artist deserved acknowledgement from google, but it was appropriated by an 11 yo asian australian in the spirit of inclusion who i’m sure had no idea (as i did) that the flag couldnt be reproduced without permission. I think perhaps a oneoff usage arrangement for a token amount would have been OK?
Ripleys Believe it or Not want to use a pic of my son n a forthcoming book. Technically they could/should pay, but if i wont let them have our pic for free , they’ll just use another kid, and my son will miss out on a very cool opportunity for an 11yo and he’ll prob kill me. What the flag designer forgot to factor in was the cost his non-partcipation would cost him in terms of good will etc.
On theme but off track, yesterdays futuretense was quite interesting.
http://www.abc.net.au/rn/futuretense/stories/2010/2803995.htm
For the past hundred years Science has taken on a secretive dimension, driven by military and economic imperatives. The idea of the ‘Open Science’ movement involves promoting greater sharing and transparency. We explore the movement’s ambitions and the hurdles it faces.
Fran Barlow@47: His name was Stieg Larsson. He wrote the The Millenium Trilogy, and died in 2004 just before publication, apparently of natural causes (Christopher Hitchens wrote about his death in the latest Vanity Fair). I have just finished reading “The Girl with the Dragon Tattoo” and “The Girl Who Played with Fire”. Yep, pretty good (except for the Prologue in the first book, with some passing references to Australia which are total crap). The books are selling very well…
danny @ 48 – I did wonder how the copyright ended up with author instead of the Guide Association, thanks for the explanation. And had also heard the tune was based on something even older.
One other thing to consider when setting the length that copyright should last is that in effect limits the rate of creativity/innovation (this also applies to patents). The longer the period, the slower derivative works are created, so there is a real cost to society in making it long period like 50 years. This is a major problem in the computing industry where innovation is generally pretty fast compared to other industries.
Fran,
You are thinking of Steig Larsson, and the Millenium series.
They are fixtures on beaches, in parks, and in airports the whole world over, and the first film is due shortly in Oz – out now in NZ. They were originally destined for TV only, but when someone tried the film in cinemas in Sweden, the box office exploded – possibly the successful Swedish film ever.
“The Girl with the Dragon Tattoo” is first cab off the rank.
Fine, my point of view is that the goal of copyright law is to maximise the quality and quantity of creative works available to as many people as possible. Allowing the creators of those works to profit is a byproduct, not the goal. But, clearly, giving creators the opportunity to profit from works is a key way to provide an incentive for their creation, particularly for “corporate art” like films.
Giving creators the right to control reproduction has, as this court case amply demonstrates, negative consequences, both in terms of the financial costs to “consumers”, and inhibiting others from creating derived works – and every piece of copyrightable work borrows inspiration from its predecessors in some way.
So, in choosing an appropriate copyright period, we need to consider the effect of a cutoff date on the financial incentives to create.
My argument is that royalties from twenty years after creation would have next to no influence whatsoever in decisions to shoot or not shoot films.
Therefore, in my view, the negatives to protection after that time, grossly outweigh the positives.
Thanks all who prompted me on Mr Larssen …
“The Google Flag issue a little more complex; arguably the flag artist deserved acknowledgement from google, but it was appropriated by an 11 yo asian australian in the spirit of inclusion who i’m sure had no idea (as i did) that the flag couldnt be reproduced without permission. I think perhaps a oneoff usage arrangement for a token amount would have been OK?”
From: http://www.smh.com.au/technology/technology-news/oh-dear-google-flagged-over-logo-dispute-20100126-mvhd.html
“Ripleys Believe it or Not want to use a pic of my son in a forthcoming book. Technically they could/should pay…”
Actually, technically they don’t have to pay. Neither you nor your son have any copyright in his personal appearance.
I worked with a guy, back in the day, who was a clown and a picture of him leading a band in a parade was used for some Victorian tourism campaign, without his permission. He went to them asking for payment and they refused because he had no copyright in his appearance. He pointed out he was appearing in clownface and costume which he did have copyright in and they paid up.
d
But Grace Pettigrew @4, the Congolese are only darkies. The very idea, white people paying royalties to their inferiors; they should be grateful that someone like Picasso deigned to rip off their artistic property. In fact, they should have paid him!
On thread, I’m buggered if I can recognise any of Kookaburra in the song. I listened intently to the flute riff which, according to Lateline Business last night was the chief offender, and concluded that someone had made a terrible blunder way back when and taught school kids to sing the lyrics to the wrong melody from day one.
Is it significant that the flute player is sitting in a tree in the video clip?
“Ripleys Believe it or Not want to use a pic of my son in a forthcoming book. Technically they could/should pay…”
“Actually, technically they don’t have to pay. Neither you nor your son have any copyright in his personal appearance.”
On the contary D, its a pic i took wth my camera of my son for my own personal use, therefore i inherently own the copyright. I dont think hey cant use it for commercial for-profit publication without my permission as its not in the public domain.
Its not their policy to offer fees for content pics, and, as they get inundated wth submissions from children and exhbitionists around the world, normally they dont need to. In my case, they tracked me down regarding another image, and this just something that came out of that process. My son is excited!
(lol – on top of my mild dyslexia, now i’ve got stcky comp keys, so my spelling s as shot as my grammar! Sincere apologies to all pedants.)
“On the contary D, its a pic i took wth my camera of my son for my own personal use, therefore i inherently own the copyright. I dont think hey cant use it for commercial for-profit publication without my permission as its not in the public domain.”
oh-ho! That’s what I get for making assumptions (I was thinking of a similar thing with my daughter, where her photo was taken on a school excursion by a media person).
You’re right. You own the copyright in the photo and they can’t use it without your permission (much to Robert’s annoyance) :^)
d
This from the Australian Copyright Council.
“The government-appointed committee whose report led to the introduction of Australia’s current Copyright Act said:
The primary end of the law on this subject is to give to the author of a creative work his just reward for the benefit he has bestowed on the community and also to encourage the making of further creative works.
In copyright law, the objective of encouraging the creation of new works is balanced by the objective of making material available for socially desirable purposes such as research and education.”
So, I’d say profit making is more than just a by-product of copyright. There are two twinned goals. The creation of new work to benefit society and the profit-making goal.
It wouldn’t really worry me if I lost copyright over my work after 20 years, but I was just making the point that the work keeps generating income after 20 years. But the ‘Kookaburra’ case doesn’t seem to be about giving the author a just reward, but about greed by Larrikin.
Well at the very least it’s a reminder of how delightful both songs are. But the case has several unusual aspects to it, so in terms of using it to formulate general principle, it may be one of those times where an adage like “Strange cases make bad law” could apply.
As to the premise that copyright law which favors the creators of content “interferes with creativity”, I think that’s a bit suspect. At the very least the converse can be plausibly argued as well.
Let’s say you’re a composer along the lines of Stephen Sondheim. You rack up a bunch of huge hits early in your career, but you’re artistically ambitious and still in your prime. Maybe you say to yourself, “Thanks to my royalties from my early hits, I now have a comfort zone that permits me to take bigger chances without the pressure to write things only in a hit-oriented style. Copyright law has enabled me to expand the range and possibilities of my art.”. In a case like that, copyright encourages and enables creativity rather than being a hindrance.
That’s one argument. There are more, but they take longer to develop so I’ll spare you.
I don’t know what would be the ‘right’ thing to do regarding copyright, but I think some of the suggestions proposed above would be somewhat unfair to artists and also somewhat naïve concerning the very large personal risks they take.
TBB @ 64 – the balance to your argument is that during the period of copyright the rest of the population can be greatly restricted from building upon what has been created. And is this case shows, even an inadvertent inspiration that is too close can lead you into legal problems up to life + 70 years later!
Fine @ 63 – in a way a few more cases like the Kookaburra one will help with the reform of copyright. Once more of the people who currently gain a lot from the long copyright periods get bitten themselves by it. Once they realise they might get sued once their career is over and they see large chunks of their retirement funds being taken away.
cowgirlwaxinglyrical – it seems there’s a lot of companies out there browsing sites like flickr for photos to use and offering amateur photographers little or no money. Even I’ve been approached and I’m by no means a great photographer. But take enough photographers taking lots of photos and you eventually get something you’re looking for. Unless its something very personal then I give permission – it doesn’t cost me anything to do so and I really don’t care if someone makes money out if it even if I don’t get anything.
“But Grace Pettigrew @4, the Congolese are only darkies. The very idea, white people paying royalties to their inferiors; they should be grateful that someone like Picasso deigned to rip off their artistic property.”
Not quite sure I get the real point underlying the sarcasm here. White artists do not pay royalties to other white artists whose artistic style they have adopted (or ‘ripped off’, if you like). They only pay royalties for reproductions.
Further, the whole comparison to Picasso/art generally doesn’t make any sense. I am no IP expert but to me it seems that you have copyright over the work at its most narrow and actual; you don’t have copyright over the styles or ideas or methods that contributed to the production of the work. Presumably that reflects the inherent impossibility of policing a law that gave rights over those things.
Anyway, it’s pretty obvious that derivative works are valuable and necessary in any culture (indeed between cultures) and we should be giving ourselves every opportunity to benefit from them as quickly as possible, consistent with maintaining an incentive actually to be an artist. Copyright terms of 90+ years or whatever insane length they have now attained seems well beyond that line.
So we are all agreed – 20 years max?
BBB
“Down Under” was recorded in 1981, nine years before Larrikin bought the rights to the song.
Larrikin was, or should have been aware, that their property rights in the song had already been impaired before they purchased the song.
There was no attempt by Men at Work or their recording company to conceal the fact that men at work had used the “Kookaburra” riff.
When that riff was plagiarized, Larrikin had no interest in the song.
In fact, the Public Trustee of South Australia had a material interest in the song when “Down Under” was recorded. The Public Trustee may have an action against Men at Work, but not Larrikin.
Men at Work did not owe a duty to Larrikin when Larrikin bought the rights to the song in 1990. However, it may be argued that Men at Work owed a duty to the Public Trustee of South Australia between 1981 and 1990.
Negligently, Larrikin failed to apprise itself of the fact that the property of the Song “Kookaburra” had been impaired before Larrikin bought the property.
Men at Work were not responsible for Larrikin’s negligence in failing to apprise themselves of the fact that the property in the song had already been impaired when they tendered successfully to buy the impaired property in 1990.
Larrikin’s action against Men at Work should have failed.
Yes, it is a reference to the kookaburra sitting in the old gum tree. It means that Colin Hay was knowingly using using the melody of Kookaburra. But as I was trying to say @ 22, it was a parody reference to the song, not plagiarism. It would therefore come under fair use.
I think Larrikin’s action against Men at Work should have failed for a whole different reason.
But, Katz, out of interest, why would a change of a ownership change anything? The copyright owner can action at any time during the life of the copyright, for a breach committed at any time during the life of the copyright. Suppose it was a less iconic song released 20 years ago, and *neither* owner discovered the plagiarism until just last year. The current owner’s claim isn’t invalidated by the subsequent date of their purchase. Or is it?
‘Scuse my grammar, btw.
I suspect sensible reform is unlikely, but if we’re debating what’s best I’d have to disagree with Skeptic Lawyer’s suggestion of a straight expire on death proposal. Consider a writer with a terminal disease and a young family. He or she writes a book about the experience, which is published around the time of death. Quite likely the only reason the author would push themselves to finish under such circumstances is the hope that the roylaties would help raise their kids. An extreme example I know, but one can think of more common ones.
I’d say either something like a flat 40 years, or a two pronged system: until the author’s death (if an individual not a corporation) or 20 years, whichever is the sooner. After 20 years any children can fend for themselves.
It’s about property.
Without property, there can be no action. For example I was outraged when Men at Work ripped off Kookaburra, but because I had no property in Kookaburra, I couldn’t sue Men at Work.
Larrikin could sue only when they owned the property. But this property had a pre-existing defect when they bought it.
Consider a parallel. You buy a block of land from a man whose neighbour had thrown rubbish all over it. The first owner had an action against the litterer but when you cam along and bought the property, he lost all interest in prosecuting the litterer.
You bought that property, which had been impaired by all that litter. You knew it was on the property. As the new owner, it is highly unlikely that you would have an action against the litterer if he had thrown all his litter before you assumed ownership of the property. You bought the property knowing that the property was impaired by the litter.
Katz – with respect to IP, companies buy IP with the intent to sue all the time (eg buy a patent in order that they can sue someone who has infringed). Sometimes the pre-existing owners even have all the legal information organised for the purchaser. They just don’t want to be the ones who sue themselves.
You’re terming it a defect, and that doesn’t ring true to me – even if they are called damages.
Unclaimed publishing earnings would seem to be more accurate. Without a contract in place, that usually, when enforced legally, equates to 100% royalty to the rights owner.
When you buy a business, its debtors don’t cease to be debtors because you, the new owner, have only just now become able to prosecute them if they don’t cough up.
It’s possibly also worth considering the many legal distinctions between a product and a license/subscription etc. that permeate the field of copyright and ip law, and particularly how they take effect in different time frames.
Nick:
A debt can be a debt only if there has been an agreement to trade. We are talking about damages here, not debt.
Chris:
A distinction needs to be made between one-off damages and ongoing damages. If a business continues to manufacture items in breach of copyright, then of course the new owner has a right to claim damages. However, Men at Work recorded the offending song only once almost a decade before Larrikin purchased copyright to “Kookaburra”. Virtually all sales of the record had been made by 1990, the date of Larrikin’s purchase of the rights to “Kookaburra”.
Proceeds from any sales of “Down Under” made after 1990 might be another matter…
Katz – are you serious when you say that you were outraged that MAW “ripped off” Kookaburra? Or am I misreading you? To me it’s an enjoyable sideways reference – but then again I’m a big fan of these references to other pieces of music in compositions, which is why this decision upsets me.
Facetiousness detectors O-O-O this morning, Helen?
In this Richard Gill lecture – If you haven’t heard these, do put them on your iPod, you’ll absolutely f*k’n love them – RG says that the structure of Tiptoe Through the Tulips, as well as numerous other songs, is directly lifted from Handel’s Messiah. Too late for Handel to sue, though.
Katz, I thought so! :-)
Should Hunters and Collectors be concerned about The Holy Grail now?
BBB@66: my comment @4 was about all art ultimately being derivative. I should have used another example, such as the influence of Japanese prints on Parisian Modernism in the late nineteenth century. Perhaps you should address your moue about “darkies” to Jane@58.
For a really interesting look at the way in which music builds on what has gone before and the unfairness of the copyright regime, see RIP, a remix manifesto – a great documentary. It has, among other things, a very interesting analysis of the dispute over Bitter Sweet Symphony, the song by the Verve which sampled a riff from the Rolling Stones. But RIP details how the Stones ripped off Muddy Waters who ripped of Robert Johnson who ripped off a traditional spiritual. So everyone’s been ripping off everyone else – and that’s the way music works!
On derivation in music…
http://www.youtube.com/watch?v=JdxkVQy7QLM
I’ve got to say that it’s an amazing feature of our legal system that property owners are under no obligation to reimburse the public for public policy that enhances the value of their property, but the public is obliged to compensate them for loss of value. If the taxpayers pay for a railway line serving my land and doubling its value that’s my good fortune, but if they pay for a highway nearby that causes me noise problems then I can mount a case for injurious affection. The US extension of Disney’s copyright in Mickey Mouse effectively gave the corporation millions…
At any event, I’d be interested in any research as to whether any creative type would be incentivised (to use Alexander Downer’s term) by having her monopoly rights extended from 80 to 100 years. Can you imagine it: ‘Nah, I won’t bother, it’ll expire Only thirty years after I’m gone…’
“Men at Work were not responsible for Larrikin’s negligence in failing to apprise themselves of the fact that the property in the song had already been impaired when they tendered successfully to buy the impaired property in 1990.
Larrikin’s action against Men at Work should have failed.”
Katz, this action has only determined that the song was ‘impaired’ and there’s been no discussion of damages. Until a couple of days ago, the ‘impairment’ was merely a claim that was not accepted by the other parties. Your argument makes no sense.
d
Hal9000 @84
Government is supposed to be beneficial, that is rather the point of it. Forcing people to pay for specific benefit received has all sort of nasty incentives. The point of government paying for harm is to stop degradation of property rights as such.
In the railway case, land taxes are supposed to recoup at least some of that benefit. (That is why railroads were generally built by governments–who got increased tax revenue–or by land grants–so railway companies could recoup some of the benefits they generated.) Indeed, gaining more tax revenue is a basic incentive for government action to promote economic activity which way predates voting. But trying to tax any such benefits at 100% would not really work …
DR in which dictionary is “impairment” not a synonym for “damage”?
If you own such a dictionary, I suggest that you throw it out.
The fact that my argument makes no sense to you in no way impairs my argument.
As somebody who holds a bunch of copyrights, I agree that the current copyright system is excessive and repressive. I believe it should be the lifetime of the author, or 50 years, whichever is longer. That is more than sufficient economic opportunity and incentive for creative works.
Let’s not forget that creative works flourished for millennia before copyright came into being.
K, an assessment of ‘impairments’ can only come after there is a determination that something has been ‘impaired’ and that determination was a couple of days ago. The argument you’re advancing is:
Larrikin should have known there was infringement before they purchased Kookaburra in 1990, so their action to prove there was infringement in 2009 should have failed. Therefore there was no infringement by Men at Work in 1981, and Larrikin was not negligent when they purchased Kookaburra in 1990 so there was no impairment to their case in 2009 and infringment di* occur, which means Larrikin was negligent in 1990 so their action to prove there was infringement in 2009 should have failed…
I’m tepid on this case. It seems clear that Down Under uses part of Kookaburra. Big whoop, everyone is using everything all the time. Was that ‘infringement’? well, yeah, probably, if you want to put it that way. The big issue is ‘what restitution is ‘Men at Work’/EMI/Colin Hay/APRA/etc going to have to make to Larrikin? I don;t think there’s been many cases like this is AU (tho’ I’d really appreciate references to similar cases) so I’ve got no feel for the precedents.
(Hypothetically, if the damages were $200 per year, would we should we care? I suggest not. Sample it, loop it, fuck it, eat it. If there’s a *small* price for admission, well this ain’t utopia)
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Helpful Ed: “Let’s not forget that creative works flourished for millennia before copyright came into being.”
Yes, but they were created under vastly different circumstances: they were made for free by the wealthy, or else for free by unpaid (and usually poor) folk artists, or as a hobby by scholars and gentlefolk; or else they were paid for through patronage from the wealthy. That world (and its low literacy rates and low general access to consumer goods) is so remote from ours that using it for analogy is pretty much beside the point. Just being ‘helpful’.
I reckon the royalties should go to whoever wrote the better version. In this case Larrikin deserves its win.
I think it’s a lousy decision, and I’d edit the hook out and re-release the song (and any albums containing it), preventing further copyright earnings. Either that or appeal.
#5 Fran – schools and educational institutions, as well as having some educational use provisions, purchase annual licenses from APRA, ARIA and several other bodies. If a school choir performed this song (or the school even played the recorded of this song), and they were either on school grounds and/or not charging admission, there’d be no problem. Although I’m not sure what the situation was back in 1965. :)
The Brill Building@90: Yeah, but, maybe all that proves is that you can’t do art under capitalism, because the profit motive does not compute (without repressive and extensive copyright).
The arts flourish in Cuba today, and nobody gets paid royalties. Go see. Everybody is bopping. Yes, everybody is dirt poor, but they all have free education, free health care, and free art. Pile on.
And perhaps all that ramping up of copyright laws (to give artists an income, yes?) has done, is leach out the “creative” pulse, and the up-yours attitude, and the element of danger, and art is now mostly commercialised, regulated, boring and trite, because no more reflexive derivation, or respectful quotation, or referencing of previous work, is allowed, without paying through the nose….
Just sayin.
I personally think there should be a limited window of opportunity in which you can sue in such cases.
For example, if Men at Work breached this copyright in 1981, the owners of said copyright should only have a certainly length of time – five years say (until 1986 in this case – to sue.
If five years elapse and no-one’s come forward to indicate a copyright breach then this “statute of limitations” pass then that’s that. End of story.
Surely if a breach is that obvious, particularly if it is in the public “ears” for as many years as this song has been, then it would come to light within that 5 year window.
More importantly, this farcical situation – where someone who didn’t hold copyright at the time the song was released but can somehow sue retrospectively – would have been avoided.
I’m sure there are lawyers who will shoot me down in flames, so go for it. I’d love to hear the counter-arguments.
Very surprised Larrikin won. The use of the ‘riff’ should have been argued as falling under fair use provisions of the Copyright Act. From what I could gather about the defense’s strategy, they put all their effort into trying to prove that copyright and thereby royalties did not apply as the copyright did not reside with Larrikin in such a manner as to make the use by Men at Work actionable.
Leaving aside whether copyright restrictions are too long, I don’t think this should be read as a significant shift in Aust. having a more draconian copyright environment. EMI attempted to prove some lapse in the copyright holding – they failed to do so. Poor legal strategy boyos…
What’s way more significant is last week’s iNet decision re their culpability as to copyright breeches with illegal BitTorrenting. We now have a legal ruling from within an Aust juridiction that ISPs are NOT responsible for the illegal actions as regards copyright infringements committed by their users.
Larrikin might think they’ve won the battle, but EMI will be hauling them into the High Court on this – a case that will be truly intriguing as we appear to have a bench itching to loosen copyright in Australia.
My thoughts exactly Bernice. Fair Use covers parody which is what this clearly is – just as the entire song is having a sly and affectionate dig at Australiana in the manner of Barry Humphries, if not the mode. I have only read the judgment not the whole case but the expert witnesses apparently were only asked about matters to do with music theory. A bit puzzling.
“The use of the ‘riff’ should have been argued as falling under fair use provisions of the Copyright Act.”
Bernice, what are the ‘fair use’ provisions in the Act? Aren’t we limited to ‘fair dealing’ and the enumerated ‘non infringing actions’ in Part 3 of the Copyright Act?
“From what I could gather about the defense’s strategy, they put all their effort into trying to prove that copyright and thereby royalties did not apply as the copyright did not reside with Larrikin in such a manner as to make the use by Men at Work actionable.”
Wasn’t that settled in the 2009 case? http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2009/799.html
This case was whether or not Down under reproduced a substantial part of Kookaburra and matters flowing from that (deceptive representations by Colin Hay etc to APRA/AMCOS)
“EMI will be hauling them into the High Court on this – a case that will be truly intriguing as we appear to have a bench itching to loosen copyright in Australia.”
I think EMI will try to keep it away from the High Court for exactly that reason, but a lot will depend on the damages settlement. And I’m not a lawyer, so what would I know?
d
The other problem with a ‘parody’ defence is that Colin Hay’s evidence was that he was unfamiliar with Kookaburra in 1981 and didn’t recognise it until he was told about it later, and Greg Ham’s (the flute player who wrote the riff) evidence that he thought it was just “an Aussie cliché melody”, or an “Irish-Australian style melody”
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Darryl the parts of Greg Ham’s affidavits quoted & paraphrased in the judgment seem to indicate he knew very well he was quoting from Kookaburra – but he wasn’t aware it wasn’t technically a traditional song.
“The arts flourish in Cuba today, and nobody gets paid royalties.”
The Republic of Cuba is a party to the Berne Convention and TRIPS and their national collection agency (Agencia Cubana de Derecho de Autor Musical) is a member of CISAC and has reciprocal arrangements with APRA.
d
Laura,
you’re right, but my point (badly made) is neither Hay nor Ham gave evidence that they were trying to parody or satirise anything. “Tongue in cheek” is not the same as a parody or a satire.
d
I have followed with interest the story of the ‘riff’ controversy – while I am no expert on legal matters, copyright or the technical side of music, I feel disturbed at the ‘ownership’ concept. I feel that music is there to be shared, enjoyed and participated in by all (I do recognise that a straight rip off of an entire tune without thanks or acknowledgement is innappropriate.)
I was relieved to learn on LP that Warren Fahey had no hand in this business, as I feel that he has a lot towards the collecting and spreading traditional music for the enjoyment of all.
But my mind keeps going back to the work of Pete Seeger – still performing at the age of 90 – he wrote, collected, and spread music wherever he went, ‘Wimoweh’ or ‘The Lion Sleeps Tonight’ being the main song which comes to my mind, having been first written and performed by Solomon Linda in the 1930′s. I am sure that Pete Seeger’s philosophy is that music is there to be acknowledged, shared and enjoyed by all.
That is the sentiment with which I feel comfortable through all of this.
TBB @ 90 – there are also many differences from when copyright was introduced as well. Its now much easier and cheaper for many people to create and distribute useful material themselves, the barrier to entry is much lower in many fields. So the need to provide protection for the investment that people have made in order to encourage them to produce things is also lower.
There are modern examples such as the development of open source software, where whilst it leverages copyright to work legally, operates on the basis of quite open sharing and collaboration. And this has not prevented a lot of useful software being developed, both on a commercial and non commercial basis.
I am just wondering, if I record a song that is a single note, say middle c, can I then sue all artists in the future that play a middle c in their work as they are reproducing a substantial part of my work?
Indeed.
I agree with most of the broader criticisms of copyright law articulated here. I think the protection is for too long; I support a broader fair-use/public domain exception to copyright and I am deeply concerned with copyright protection given to first publication of traditional usages.
On the other hand I think most of the specific criticisms of this case are nonsense. The notion that transposing into a new key, or inserting one or two new notes should free you from copyright restrictions is a joke. The judgment is actually spot on in these respects.
MAW have all but admitted that they copied Kookaburra. Their song would have been a great one without this action and it was a foolish thing to do. (Ah but those were simpler times…) I am expecting – and hoping – that the judge repeatedly stressing that the infringing part is not a substantial part of the infringing work foreshadows a determination of nominal damages.
I also have a suspicion that people are allowing their musical sympathies to guide their reaction to the facts of the case, which is not exactly a proper ‘rule of law’ position. Hay could be the nicest, most iconically Australian songwriter, and Larrikin could be the most venal, opportunistic evil record company, they would still be entitled to their due protection under law. (As my first paragraph says, whether those protections are appropriate is a different matter.)
No, for reasons the judgment makes clear. There must be a causal connection between the infringed work and the infringing work. Truly accidental reproduction is not an infringement of copyright.
I dont know if its been mentioned above, but AFAIK the copyright period of 70 years changed with the AU-US Free trade agreement. Up from 50 years, to meet the US standard.
Leaving aside the legal issues, as a one-time muso, I really feel for the song’s authors. Its abundantly clear to anyone who has ever taken a song to a band that this was a non-authorial addition that post-dated the writing of the song. The flute player had to play something – and did, quite wittily, sample some Australiana.
But I bet London to a brick the two authors are telling the truth: the song was already 100% written before the flute riff was added.
Which only goes to what a total bummer it must be for them – not to any issues of legal liability. The real irony is the flute player probably never got any royalties.
Stuth! My name and that of my record label has been getting belted left, right and sideways. Thank you to all those who jumped to defend my name and reputation as the real spirit of Larrikin. Yes, I started Larrikin Music in 1974 – mainly to publish the songs of Eric Bogle including ‘And the Band Played Waltzing Matilda’, but SOLD the publishing side because I needed some money to pour down the drain of the record company. Larrikin Records issued some 500 Australian albums and certainly doesn’t need to be associated with Larrikin Music which is now owned by Music Sales, an international publishing giant. I further point out that after selling the publishing company Larrikin Records went on to release the music of Colin Hay. I hope this makes the issue clearer. The full Larrikin story and discography has been put up on my site.
Thanks for stopping by to comment, Warren. I’ll add a link to your comment from the main story.
I think its only fair to use the name Music Sales Group, a multinational business which buys and enforces copyright to songs. Its not based in Australia, but in the UK I think.
Does anyone know of an accpeted date for UnAustralia Day, like say on July 26, the opposite of Jan 26?
If there was an UnAustralia day, and I would nominate Norm Lurie, Music Sales’ local crawler, for UnAustralian of the Year.
Bob’s in fine form:
…(T)his latest nonsense, the equivalent of watching the French government sue the Beatles for the use of their anthem in the first bars of ‘All You Need Is Love’ is, I submit, your honour, and members of the jury (yes, yes, it’s a pun) a bridge too far.
…I ask, my lords, that Justice Peter Johnson, be whisked away from the bench and be given a tin whistle and an upturned hat and a legal obligation not to play on his instrument any song he has not himself written, or any notes of any songs he has not himself written, and see how long he lasts without starving.
Please note!! That whole last comment is a quote from Bob Ellis, not me – I blockquoted it, but must have stuffed it up somehow! Please don’t sue me, Bob!
Should be fair use. Hay should’ve been able to stand up and say proudly – yeah, it’s a reference. A motif. It’s fair use. Get stuffed.
The corporate copyright industry is always calling for “copyright reform”. It’s certainly needed – but not in the direction they have in mind.
My god – the traditional Welsh round that Hoyden links to should’ve killed the claim, even with the law broken as it is.
Could it be too late to raise it, though?
Is there any evidence at all for the ‘traditional welsh song’ idea? It’s on wikipedia
http://en.wikipedia.org/wiki/Kookaburra_%28song%29
which link to a midi file
http://musicanet.org/robokopp/welsh/aeidirde.mid
which sounds *nothing* (and I do mean nothing) like Kookburra and if you read the wikipedia discussion it seems that someone thinks the Kookaburra *lyrics* are based on the welsh song, not the tune.
I suggest it’s equally likely your youtube link is a welsh song based on Kookaburra. Do not underestimate the reach of the Guiding movement.
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I think the technical phrasing is “I put it to you that…” :-)
Oh, that’s far too assertive for the wishy-washy bet-hedging mood I’m in today. :^)
(but why do I always mentally finish that sentence with ‘…there was no bucket bong’?)
d
The flak against the recent rulings against infringement of copyright is SHOCKING !! What is the difference between stealing physical property and stealing Intellectual Property ?
In Australia, most people seem to consider car stealing to be a very serious crime and yet are totally oblivious to the same crime when Intellectual Property is stolen – WHY ?? Both properties can be converted into cash when they are sold – can’t they ??
Would it have been considered as fair play if the big Hollywood fat cats had produced the film “Gone with the wind” (which was based on Margaret Mitchell’s best seller novel with the same title) without paying a single cent to this talented author ?
What if a hard working Australian person designs a mechanical component that reduces fuel consumption by 50-60 percent when fitted to a regular car’s engine – would it be considered as fair play if the big multi national car makers copy both the blueprint (and text that explains the invention in detail) then exploit it without paying a single cent to the hard working Australian person who had invented such a mechanical marvel ?
It would appear that it is only people who are unaware of the definition of money that have this unfair opinion. The definition of money : “Money is legal tender in exchange for goods or services” makes it perfectly clear that money never starts its existence as cash, but in the form of either goods or services.
Fair is Fair, your analogies would be much more persuasive if the returns from IP were actually paid to the hard working, talented creators.
Fair is Fair’s argument would also be more cogent if there were any similarity between theft (which deprives a property owner of the use and possession of her property) and copyright violation (which simply deprives the copyright holder of royalties he may not have got anyway).
And if the copyright holder in this case was the author of “Kookaburra” and she was still alive to receive royalties.
David, I’d have to disagree with you that there’s a complete difference between theft and copyright violation. There are differences, but there’s also similarities. Copyright is a form of property. The argument, which seems to be, that it’s not theft because you wouldn’t have paid for it if you had to, is nonsense.
Royalties are a form of payment for use of my property. If you don’t want to pay for its use, then don’t use it, unless I give you permission to do so.
Of course the Kookaburra case is ridiculous, but for a different set of reasons.
The difference is in the meaning of stealing.
If you steal someone’s car the victim cannot use it and the value of the car depreciates while the car is not in the possession of rightful owner. Theft occurs when the thief intends permanently to deprive the rightful owner of her property.
MAW did not intend to deprive permanently the rightful owner (in this case at the material time the State Trustee of South Australia) of possession and enjoyment of the state’s property. Still less did MAW intend to deprive Larrikin Records of that ownership and enjoyment. They couldn’t intend to do that because Larrikin Records had no interest in the property at the material time.
If you take someone’s car without them knowing it and instead of thrashing it to death you give it a cut and polish and then return the car to the place from which it was taken, this is not theft.
In that sense, MAW gave “Kookaburra” a cut and polish and returned the song to its rightful owner (the people of South Australia) in better condition than when they found it.
The difference between “stealing physical property and stealing Intellectual Property” has been canvassed in detail in here before, Gummo T points out why the “hardworking author” is a complete furphy in this case at least, the acceptance of a location boundary between fair use/public domain and protected copy has been generally accepted above although the precise location of it has been contested, so all I feel like commenting on in 120 is the last paragraph, to observe that Marx had some slightly different ideas about that. ;-)
“If you take someone’s car without them knowing it and instead of thrashing it to death you give it a cut and polish and then return the car to the place from which it was taken, this is not theft.”
Actually, I don’t know that the police would see it that way.
As I said, I think the Kookaburra case is ridiculous for all the reasons canvassed above. I also said that property theft and copyright violation is not the same thing. However, if I create a piece of intellectual property, it’s an asset I make money out of. What I’m objecting to is the implication in what DI said that depriving people of their royalties somehow doesn’t matter, if you wouldn’t have paid for it in the first place.
Here’s an example. Screenrights is a scheme which all schools sign up to. It means that if a teacher tapes something off tv for use in class, then a fee is paid to the owner of the IP. Those royalties are an important source on income. If schools decided they just wanted to use that IP without paying, then that income is lost. I’ve earned up to $25,000 for one screening of a doco under this scheme. This money isn’t illusory.
And yes, Martin B, it was all discussed there, so we’ll end up going round in circles.
I can’t help the ignorance of the police.
Here is the definition of theft in the 1958 Crimes Act (Victoria).
I agree that violation of copyright is depriving the holder of income, Fine, and completely see your point. Fair is Fair, otoh, was being simple-minded about the whole thing.
It costs schools about a half-time teacher’s take-home pay to see your flick fine? Interesting educational value proposition … Not wishing to cast nasturtiums on your eponymously and otherwise fine work, but I think you’ve demonstrated part of the problem. There is no documentary, IMO, worth that out of a school budget for one ephemeral screening. But now I see how Al Gore’s business plan works.
I mean what if you could get the fix in, and get it on all schools’ curricular material with a bullet? It’s make the greensulation scam look like lunchmoney. Like Kookaburra. I guess that is the point of Music Sales carpetbaggery in going after rights to the original title, there’s a goldmine in them thar schools.
How many Grade 9 maths texts (etc ad nauseum) titles do we really need? Pathetic literacy and numeracy testing scores suggest that publishing profligacy hasn’t come up with the goods, there must be another agenda being played out.
I cringed when I heard my great niece sing That Ditty yesterday, expecting APRA around any moment with its hand out.
Danny, it’s many schools paying a small amount of money. Not one paying a large amount.
The words “interfering with creativity” in the title of this particular topic appears to be, not only a role reversal between the “creator of an original work” (as the victim of a copyright infringement) and the “copyists” who had copied the said original work – but also a direct swap of the respective definitions pertaining to the words “creation” and “copy”. Surely a work which copies a previously released original work cannot possibly be considered to be an “original creation”.
“Interference with creativity” therefore, would more likely exist when the person who is born with the artistic talent that is essential to create an original artistic work that is worth copying (and subsequently worth exploiting) to generate substantial financial earnings in the market place, ceases to create any new original works altogether. The cause for this would be : If only the copyists can legitimately reap a fortune from the creative talents of persons who are able to create extremely valuable original artistic works, leaving the original creator with only a pittance as a reward, there would no longer be any incentive for these real creative people to keep producing artistic works. The resulting “interference with creativity” would be the copyists finishing up with nothing to work on (or to copy). This reality, however, may not be as evident in the Australian Music Industry as it is in the Australian Film Industry.
It is perfectly clear in the Kookaburra case that Marion Sinclair had created a very catchy tune, even for that particular period in time (1930’s) – which catchy tune subsequently became an iconic Australian song. So, when Men at Work copied the flute riffs contained in the original song, the emotional feelings that were still present (but in latent form) in the Australian psyche, were awaken when the media used the song “The Land of Plenty” to that effect, after the win of Australia II in the 1983 America’s cup. It is therefore very clear that the two major factors which made “The Land of Plenty” a financial success in Australia, were the catchy tune already contained in the original song “Kookaburra in the old gum tree” together with the ability of the same song, but re-mastered by Men at Work, to awaken the latent Australian spirit still present in the Australian psyche post 1983. The new technology that was used in 1978/1981 for creating the musical arrangements in “The Land of Plenty” song was to add cosmetic effects that were considered relatively attractive, as well as relevant to modern times. It needs to be remembered that this new technology neither existed nor was needed in the 1930’s to drive the original song created by Marion Sinclair to the status of “iconic Australian song”.
Insofar as the substantial part of the original work that is said to have been copied for copyright laws to apply is concerned, the essential few bars that generated the musical succession of notes which, when joined to these initial few bars, made up the entire collective of tunes that constitute the whole entity of the song “The Land of Plenty”. It is said that a piece of music is similar to a mathematical formula, in the sense that the combination of musical notes in a piece of music is perfectly balanced (what goes up must come down and vice versa) to form a harmonious melody that is similar to the précised nature of a mathematical formula. Reference is made here to the works of Johann Sebastian Bach, who is widely considered to be the best composer of all times, on account of his perfectly balanced and therefore harmonious compositions. As an experiment, we could perhaps take, say, the first few introductory bars of Beethoven’s 5th Symphony and substitute the successive musical notes of this particular composition with the equivalent successive musical notes of, say, any of Vivaldi’s four seasons. Most people would agree that the end result would be an absolute cacophony made up of incompatible musical notes. It can be concluded, therefore, that the musical notes in any composition have to imperatively obey a strict sequential order of succession to produce a harmonious melody.
Another issue that needs to be considered when measuring the just proportion of royalties owing to the current owners of the copyright in the song “Kookaburra sits in the old gum tree” is that the song “The Land of Plenty” dwarfs all other Men at Work “compositions” in terms of popularity – and when we ask ourselves why – it becomes evident that these other songs by Men at Work were neither intended (nor contained anything similar in nature in their lyrics or musical arrangements to those of “The Land of Plenty”) that had the same ability to arouse the same intensity of Australian emotional feelings in people. Why then did a song which so successfully aroused the Australian spirit in Australia, sell so well in countries other than Australia – we may ask ourselves – the answer is simply because its melody was considered to be very catchy regardless of the country in which it was played.
What has been said in these comments is in no way an attempt to diminish Men at Work’s musical prowess, but it needs to be remembered that the skill needed by a musician to play a particular musical instrument must not be confused with the highly charged emotional feelings that only a handful of highly sensitive people possess and use (even if they are unable to read or write music) to compose a particular piece of music that arouses human emotional feelings to such elevated levels. E.G. Irvin Berlin.
During the current trend of wall to wall socialism in existence right across Australia at the moment, it would be sacrilegious not to agree with popular belief that every man was created equal, even though it is so obvious that God has given outstanding artistic talents only to the chosen few. Surely God did not intend that this pseudo equality be artificially achieved by PLUNDERING somebody else’s original work. What is unjust in this case, however, is that the person who justifiably deserves to be recognised for the financial earnings initiated by her original iconic and catchy Australian tune, but realised at a different point in time … is no longer alive today.
Nasturtiums put back in their box then Fine, out of castings way.
133 is a pisstake, surely.
zoot,
I think Creative Guru aspires to a job writing those little booklets they put inside classical CD cases.
Gummo, an identical comment has turned up at our place. Interesting :\
Ern Malley lives.
Heh. Irving Berlin…you mean the guy who allegedly nicked the melody from Scott Joplin to get his first hit? :)
OK then Robert, according to your theory of infinite creative regression… so who did Scott Joplin steal the tune from, before Irving Berlin stole it from him? ;-)
At least George M. Cohan had the decency to plagiarize himself.
(Actually, didn’t some famous songwriter once get sued for plagiarizing himself?)
Surely a work which copies a previously released original work cannot possibly be considered to be an “original creation”.
And if Colin Hay or his flautist had been copying, as opposed to sticking in a two-bar reference to something in a solo, then you might have a point.
believe it was John Fogarty, lead singer of Creedence Clearwater Revival.
Incidentally, “Fair is Fair” and “Creative Guru” are from the same IP address. Please note that sockpuppetry is against LP comments policy.
Darryl, the midi file you link to @117 as far as I can tell from my scourings of the net is the tune to A Ei Di’r ‘Deryn Du (Blackbird Will You Go). The lyrics of that song on the webpage I found that had the same tune were as follows;
The original wiki link that claimed that Marian Sinclair ripped off a welsh nursary rhyme led to a nursary rhyme called Dacw ti yn Eistedd/There you are Sitting
I don’t speak Welsh. :-( But the video Jeremy links to @116 *sounds* alot like Kookaburra; but Hoyden attributes it to ‘Dyna ti yn eistedd’.
Anyways, the lawyers have probably sussed out alot more of the music history so far; but its fun to watch them play wiki games.
Creative Guru, isn’t it clear from listening to ‘Kookaburra’ and ‘Down Under’, that there’s no copying involved. Perhaps just a playful tip of the hat to a piece of Australiana?
Interestingly, film directors steal shot sequences from each other all the time and often call it an ‘hommage’, which is completely fair enough. One blatant example is Paul Schrader who nicked the end of both ‘American Gigolo’ and ‘Light Sleeper’ from Bresson’s ‘Pickpocket’, because he wanted to create the same emotional affect, which Schrader describes as ‘transcendental’. No-one’s ever tried a copyright case on this basis and I hope no-one ever does.
No-one has tried such a case because there would be no case. As I am sure you are well aware there is no copyright on ideas, but rather on specific expressions of them. So there is no copyright on the idea of a woman visiting a man in jail etc. There is copyright on the particular images showing Marika Green visiting Martin LaSalle in jail, just as there is copyright on the (different) images showing Lauren Hutton visiting Richard Gere in jail.
I have said above that I fully support a broader “fair use” regime, but it is pretty clear that under the law as it currently stands your example is not at all similar to the original case.
Katz, very late returning to this, but I (finally) had a brief chat tonight with a lawyer friend who has experience with copyright law, and, specifically, how it relates to music publishing.
He’s obviously not familiar with the particular contract of sale for the song Kookaburra, but made the point that it’s very common for such contracts to include a clause along the lines of ‘transfer all rights, past and present, and in perpetuity’ etc.
In which case the Public Trustee of South Australia would have ceded any and all rights they had to action and receive damages for the years 81-90 to Larrikin/Music Sales.
However, he also made clear (I think! Which goes for my recollection of all of this, btw) that it’s somewhat grey turf, and that even though Larrikin/Music Sales *are* pushing for damages for those years, the judge might not see fit to award them.
And that, IHO, 60% is a nonsense, and they’ll more than likely settle out of court.
(He also light-heartedly recommended Deadwood as a source of possibly more relevant analogies ;))
Ok – Perhaps the analogy between a stolen car and stolen IP at 120 was not terribly cogent. Can it be said in all fairness that the analogy lacked specificity rather than similarity ?
In order to establish a sharper similarity between “Kookaburra” and the “stolen car” as per the comment at 120 – let’s say that the said car which has been illegally taken from its rightful owner, has been REPAINTED + its ENGINE HOTTED-UP + CONVERTED into a TAXI.
We have to concede that we now have a tangent shooting off the “going round in CIRCLES” that this debate has become for the authors of the comments made at 128, 129 & 130.
The reality of the situation with the addition of this specific extension to the initial analogy, is that the taxi fares earned by the original car after its conversion into a taxi – and for quite a substantial number of years – have been permanently retained not only in their totality but also without any intention on the part of the “borrowers” to compensate the rightful owner with a just proportion of the fares that had been accumulated during all these years … UNTIL the rightful owner took the matter to court.
Surely depriving the earnings of an income producing asset from its rightful owner (refer to 122 and 130) is just as bad a crime (if not worst) as stealing a car … on the basis that it was a calculated act to illegally (but indirectly) acquire a substantial amount of cash by stealth. I would agree, however, that there is an element of injustice in the Kookaburra case that runs in parallel with the analogy in its new extended form, because a third party had purchased the car for a meagre A$ 6,300 (and not for the real value of the car after its conversion into a taxi + the taxi licence) from the rightful owner LONG AFTER it had been obtained from the original owner.
So, wouldn’t the Crimes Act 1958 – SECT 72 (Definition of Theft) as quoted at 129, better apply now that the same analogy – but presented with more specificity – provides a sharper similarity between stealing a car and the “Kookaburra” case ? One only needs to act in good faith to recognize that the analogy is now not only sharper in terms of similarity, but also unquestionably COGENT.
The crimes act makes perfect sense if you want to put everyone in gaol.
Fair use. Beyond what Fine considers acceptable. Exclusive copyright – 7 years. Same for FOI. Give us back our public domain in print, song, tv and and digital media.
The internet could run on 7 year old technology. I’d wager money that Web 2.0 is pay-per-view which *could* provide the revenue stream for content producers of niche markets, and further break down the financial control of the publishing/recording/broadcasting industry over distributing content.
Interesting times ahead I reckon.
Fair is Fair, your analogy doesn’t work at all.
In order for Larrikin (pre-sale) to have lost out on any earnings from “Kookaburra sits” … Well, what earnings would there have been from it in the first place?
The song was performed in schools and other kiddie-type concert scenarios. What great utility were the owners of the songs forgoing? It’s not like the car analogy where the use of the car is lost.
Fine @ 127 – a lot of the copying which goes on over the internet (eg. movies/videogames/songs) is done by people who would not be able to afford to pay for it. So I do think many of the figures which are quote the industry losing $X billion dollars in copyright violation are quite misleading. Even with the most strict legal and technical regime imaginable they would never have received that amount of money because the people doing the copying never had the money to give to them in the first place.
Blessed is adversity because it stimulates the thought processes.
Reference is made to Fine at 145. I am in full agreement that “Land of Plenty” does not sound anything like “Kookaburra” but only to the naked ear (if I could use this expression). We need to agree, on the other hand, that the reduction of the same notes from both songs, to basic midi sounds and superimposed on one another (as was published on the Net) is quite convincing. Result : The notes and their musical successions in “LoP” are identical to the ones in “Kooaburra”. I guess that the reason for this is : just like camouflage gear mitigates the visual prominence of soldiers in heavy foliage, the clever musical arrangements by MAW in “LoP” reduces the audio prominence of the two bars in question in a similar way. This is in my opinion the FIRST point of SUBSTANCE.
Nobody could possibly deny that using “Kookaburra” as an expedient (or even making a reference to it) with admission that it was to gain popularity, was a tip of the hat by MAW to Australiana. It needs to be remembered, however, that EVERY band (with no exception) who releases a new record does so with the underlying aspiration (and hope) that their new song would become popular, or perhaps even reach the top of the charts. The underlying intention which motivates bands to compose new songs, therefore, is to ultimately generate financial earnings from the sales of their new songs at the music store. Popularity = Success = Financial Gain through sales.
Regardless of the level of patriotism one feels for Australia, it would be seen as Un-Australian to allow bias in favour of Australiana to impede on the fairness and wisdom of one’s assessment with respect to this particular case.
The video clip promotion for MAW featuring a flautist sitting in an old gum tree, together with the opening scene featuring the notes in question being played on a series of partly filled bottles are two conspicuous give-aways. These two give-aways establish that the two bars in question were in fact (consciously) replicated by MAW in the “LoP” song. It can be said that these two give-aways represent the SECOND point of SUBSTANCE.
The admission by Hay that the flute riffs in “Land of Plenty” were copied from “Kookaburra” is an undeniable material fact concluding that infringement of Copyright has in fact taken place. It can be said that this admission represents the THIRD point of SUBSTANCE.
The judge’s ruling that the principle of copyright is about quality and not quantity is a point of law that cannot be set aside. The way I understand this ruling is : the two bars in question are pertinent to the original song (Kookaburra) to which this principle of Copyright applies. The replicated number of notes and the proportional time duration of these two bars in the second song (LoP) are totally immaterial. The proportion of these two bars (out of four bars) in “Kookaburra” was considered by the judge to be a substantial part (50 %) of the first song (“Kookaburra”) … which I believe consists of only four bars repeated throughout the entire song from start to finish.
Another approach to understand this ruling in reference to “a substantial part of an original work being replicated” is like I have said before : A piece of music is governed by a strict rule of continuity which makes a piece of music harmonious, ONLY when the musical succession of notes flow on in a smooth and balanced sequential order. To produce this harmonious piece of music the succession of musical notes has to be in the same precise order as the computation of numerical values in a mathematical formula. For example, in a mathematical formula where A plus B multiply by X minus C divided by Y = Z is a result that would be totally different if the sequential order of the computations (or the values of the individual components represented as letters of the alphabet) are changed. Unlike an echo which generates an identical sound to the original sound in return, a succession of musical notes in a given sequential order generates a series of un-identical sounds – that are governed by the strict rule of continuity – to produce a particular harmonious tune that arouses human emotional feelings … or be at least pleasant to the ear as in catchy tunes (e.g. “Alexander’s Rag Time Band”).
Based on the sum total of the afore mentioned material, the notes in question represent the foundation notes that flowed on from the same source (i.e. “Kookaburra”) and which provided the smooth continuity that generated the harmonious flow of the remaining succession of musical notes to ultimately complete the composition of “Land of Plenty” as an entity.
The imputation that follows is : if the two bars in question copied from the first tune (“Kookaburra”) and replicated in the second tune (“Land of Plenty”) by MAW, were instead two totally different foundation bars (composed exclusively by MAW as their own original creation) to generate the smooth flow of the remaining musical succession of notes that makes “Land of Plenty” a harmonious and complete entity as a song in the end, the entire tune of “Land of Plenty” would have been totally different as compared to the version that was sold worldwide.
The question that will never be answered, if this had been the case, is : Would the song “Land of Plenty” with a totally different tune have been as popular and as commercially successful as the version that was sold world wide ? There is a strong indication – based on the lesser popularity and/or commercial success of all other MAW songs – that strongly points towards a negative answer in this respect.
Another interesting point is that MAW could have purchased the rights to “Kookaburra” in 1978/1981, depriving Larrikin Music of a chance to speculate about potential profits that could be realised in the future, or even placing the repurchase value of “Kookaburra” (after the commercial success of “Land of Plenty”) out of Larrikin Music’s reach.
What is immutable is that the LAW will always see that Larrikin Music is the legitimate and rightful owner of the rights in “Kookaburra”, the copyright of which has been proven to have been infringed. Under the provisions of fair trading laws Larrikin Music (unfortunately) is lawfully entitled to a just share of the profits realised by “L.o.P” and this is immaterial of the fact of the irrelevant comment made by Martin B at 126 that “the hard working author” is a ‘complete furphy’.
Anybody advocating for “Public Domain” for original creations that become iconic Australian works, should check out Section 51, sub-section roman (xxxi) of the Australian Constitution. If such a course of action is approved by any one of the two (or both) houses of Parliament, this would still leave the responsibility to decide what financial amount would qualify as a “just” entitlement that is owed to Larrikin Music … to the Courts.
Even though Martin B at 126 does not appear to approve of Marxism in Australia, he/she reminds us that a large demographic segment of the Australian population regards Marxist ideologies as acceptable. This reality is affirmed by the comment made at 135 by Zoot !!
Please note that any further attempts at sockpuppetry will be deleted.
Bullshit. This is just another lawyer scam from people who have no problem rent-seeking off our history and culture.
Bullshit, also, because hundreds of songs which reference other songs since the dawn of pop music would also suffer the same fate. Oh wait, they haven’t. Just a few examples:
The Pogues – And the Band Played Waltzing Matilda / Waltzing Matilda
Austin Lounge Lizards – Shallow end of the gene pool / Ode to billy Joe
They Might be Giants – Ant / Hail to the Chief (“Grow up to be president”)
Lynyrd Skynyrd – Sweet Home Alabama / Southern Man & Alabama (Neil Young)
Deep Purple – Speed King (Quotes lyrics from Good Golly Miss Molly, Lucille, Hard Headed Woman etc)
Elvis – Love me Tender: (French song – chagrin d’amour?)
KLF -?- / Wichita Linesman
Bonzos Re-Cycled vinyl Blues / various
Fureys – The Green Fields of France / various
Blue Oyster Cult – The Marshall Plan / Guitar riff from Smoke on the water
Little Richard – Good Golly MM / Piano riff from Jackie Brenston Rocket 88
Miles Davis – Right Off / Jimi Hendrix’s We Gotta Live Together
Jimi Hendrix — We Gotta Live Together / Sly & The Family Stone Sing A Simple Song.
…I’ve got more, but don’t want to crash the LP server ;-)
In reference to 153/R.M – Without intention to sound patronising; what is the exact definition of the term sock-puppetry?
Is there a breach of L.P. policy when two separate identifiers are used to differentiate the nature of two separate points raised within the same topic?
It would be rather detrimental to the valuable contribution made by L.P. to the good administration of justice, if the cause for getting comments deleted is a basic misinterpretation of the term sock-puppetry, since no definition of this term can be found anywhere on the L.P. blog.
Since we are on the subject of sock-puppetry – who owns the rights in the words spoken by Terry the puppet? Is it Terry the puppet or Chris Kirby the puppeteer?
Who owns the rights in the words : “Here’s looking at you kid” spoken by Humphrey Bogart in the film Casablanca? Is it Humphrey Bogart or the person who had created the original work which was used in the production of the said film?
Who owns the rights in the words : “We’ll put another shrimp on the barbie”? Is it Paul Hogan or the person who had devised the advertisement used by the Australian Tourism Commission, to sell Australia overseas as a tourist destination?
And who owns the rights in the words : “We will catch you before someone gets hurt”? Is it Ken Lay, the Victorian Police Assistant Commissioner for Traffic (who personally features in the ad) or is it the person who had devised the ad for the Victorian Transport and Accident Commission?
“…or the person who had created the original work which was used in the production of the said film?”
That’s even more of a can of worms than you think. Casablanca was based on an unpublished play by two writers, bought by Warner Brothers, at least four other writers worked on the screenplay and the producers, Hal Willis and David O. Selznick, were very active in tweaking the script during preproduction, production and yes, even during post-production. I think you’ll find here that if it came to the crunch, anyone contesting ownership of that line would not have a beautiful friendship with Warner Brothers.
And just to further muddy the waters, what about mashups? Or even this?
Also highly entertained by Creative Guru’s barrack room lawyering which at least proves one thing, that he/she/it is neither ‘creative’ or a ‘guru’. And I suspect the comment in question was “… played on a series of partly filled bottles”.
My personal view (as someone who’s songwriting royalties has earned me enough for a few overseas trips and a nice tux) is that copyright should be enforced for the life of the individual generator only. Why should my ancestors or some corporation benefit from something when I no longer have a relationship with ‘em?
Also I take Helen’s point @155. It’s generally accepted that most other creative mediums like moving images, writing, painting, theatre, the plastic arts etc can get away with quotes, homages, allusions and other references to previous works. Why not music? As Keef said, “it’s a hand me down” artform.
Mind you, I once indirectly dealt with the Stones music publishing company and a right pack of ruthless money grubbing bastards they were.
And also, here’s a timely take on the the whole plagiarism issue by a professional in the field of creative content development.
“Non-writers think it’s the ideas, rather than the execution, that make a book. They’ve got that backward.”
Oh fuckkity-fuck.
“Why should my ancestors…”
I meant descendants obviously. Already benefited from my ancestors.
Nabs, you really need to get your own blog. And I mean that not in the “go away” sense, but the “I’d really enjoy reading your blog” sense.
“…you really need to get your own blog.”
Nah! Too lazy and too easily – GECKO! – distracted.
That last comment referenced “Up” which I think is Pixar’s best film. Which is saying something. Never seen talking dogs done better on screen. Also zepplins hosting biplane fighters and a large flightless bird called ‘Kevin’. And the best sword fight ever. See it, even without a kid as a beard.
In contrast to the pending suit linked to by Nabs@160:
“In contrast to the pending suit linked to by Nabs@160:”
So what bit of ““Non-writers think it’s the ideas, rather than the execution, that make a book. They’ve got that backward.” didn’t you understand?
It was the lawsuit I was referring to, not the comment on, sorry if that wasn’t clear.
My quoting re: Eva Ibbotson, a widely published children’s author whose book sales have no doubt been enhanced by the Harry Potter juggernaut (and Ibbotson’s attitude to ‘borrowing’), actually supports the comment, as itself refers specifically (and thereby contrasts) to the small vanity published book whose author’s estate is at the centre of the linked lawsuit.
Helen at 150 – (1) “Your analogy does not work at all”.
Are you suggesting that the gas conversion kits fitted to all taxis, as well as to a large number of private vehicles – which incidentally are subsidized by the Federal Government – are a complete furphy too … and so is the person who had invented this wonderful cost saving accessory than can be fitted to petrol guzzling cars?
(2) “Well, what earnings would there have been from it [Kookaburra] in the first place?”
Even though the term “reference to the song” is used as a defense line, there is solid evidence which proves the material fact that a substantial part (2/4 = 50 %) of the original work was in fact copied.
How could “Down Under” have taken so much financial earnings, without the original 2 bars copied from the first song (i.e. “Kookaburra”)? How dependent is the remainder of the river as compared to the source from which the river flows? How dependent is the remainder of the house as compared to the foundation on which the house is built? Without a starting point both the river and the house would NOT EXIST …
The remainder of the notes which gave “Down Under” its final and entire tune, have evolved from the foundation notes provided by “Kookaburra”. The earnings of “Kookaburra” are therefore incorporated in the earnings of “Down Under”. The proportion owing to Larrikin Music from E.M.I is a separate issue that is yet to be decided.
Helen at 150 – (2) “Well, what earnings would there have been from it [Kookaburra] in the first place?”
In more elaborate terms; the two bars out of four (i.e. 50 %) of the original song (Kookaburra) which had been copied, were considered to be a substantial part of the original song by the judge. The wording “substantial part” (i.e. 50 % or 2/4) of the original work is pertinent to the first song (i.e. Kookaburra) under the application of copyright law in its fundamental form, and their proportional time duration as featured in the second song (“Down Under”) is totally immaterial.
If MAW had used two other bars (that were their own original creation) instead of the two bars that were copied from “Kookaburra” – the song “Down Under” would have finished up with a totally different tune altogether. Based on the popularity/commercial success of all other MAW songs, it is very doubtful if “Down Under” would have earned as much financial earnings from its sales worldwide (without the original two bars) as compared to the one that contained the original two bars which was actually sold worldwide.
Patriotic people with highly charged emotional feelings must not allow their bias in favour of Australiana to interfere with the soundness of their judgment, or with their virtues when making a fair assessment with respect to the just amount of royalties that is owing to the plaintiff in this particular case. A good judge just like a good critic must always stay impartial.
Helen at 150 – (2) “Well, what earnings would there have been from it [Kookaburra] in the first place?”
Conclusion : I bet my bottom dollar that your judgment would switch to the extreme opposite, in the event that your car is illegally taken and converted into a taxi without your permission. If e.g., you had purchased your car from a car dealership whose stock was supplied by, say, the Ford Motor Co. Even though the Ford Motor Co. had designed and built your car, then supplied same to the dealership from whom you had purchased your car, you are unquestionably the rightful owner of the car simply because you had bought it from the car dealership.
What would you say – in the event that it was in real life that your car was illegally taken to that effect – if the people who had illegally taken your car contend in court that it is the Ford Motor Co. who had designed and built your car, and therefore you are NOT entitled to a fair proportion of the taxi fares that your car had accumulated over several years, after its conversion into a taxi.
We need to remember that a judge of the Federal Court of Australia earns $ 360,000.00 a year. This is $ 20,000.00 more than what the Prime Minister (who is our top level representative in Canberra) earns a year. Why do you think?
Can we please skip the analogies?
A song is not a taxi (LPG converted or otherwise), a river can be emptied, and a house without foundations crumbles.
They are not equivalent to 2 bars of melody in any shape, manner or form.
You read it. You can’t unread it.
look, any and all attempts to use analogies to physical property in IP arguments is a waste of precious brain cycles. They just don’t work. We end up with ‘well, if I made myself a car out of pictures of your car, and your neighbours car, and some stuff I drew myself…’ and that’s obviously nuts, not least because the *manufacturer* likely owns the look & design of your car, not the person who owns the car itself.
On the off chance anyone is interested in the knotty problems of copyright and artistic expression, I’d suggest a useful essay is Negativland’s “Two relationships to a cultural public domain”
http://www.negativland.com/news/uploads/negativland-two_relationships_essay.pdf
and their “Tenets of Free Appropriation”
http://www.negativland.com/news/?page_id=10
And I can;t resist reproducing the opening of John Oswald’s 1985 paper “”Plunderphonics, or Audio Piracy as a Compositional Prerogative”
http://www.plunderphonics.com/xhtml/xplunder.html
d
Art and culture use quotation and appropriation. It’s as simple as that. (Also, art is not a taxi.)
Using a reference to / snatch of another song in a song has been going on for centuries. WHere are you going to draw the line, fair-is-fair? Here’s just a few examples:
The Pogues – And the Band Played Waltzing Matilda / Waltzing Matilda
Austin Lounge Lizards – Shallow end of the gene pool / Ode to billy Joe
They Might be Giants – Ant / Hail to the Chief (“Grow up to be president”)
Lynyrd Skynyrd – Sweet Home Alabama / Southern Man & Alabama (Neil Young)
Deep Purple – Speed King (Quotes lyrics from Good Golly Miss Molly, Lucille, Hard Headed Woman etc)
Elvis – Love me Tender: (French song – chagrin d’amour?)
KLF -?- / Wichita Linesman
Bonzos Re-Cycled vinyl Blues / various
Fureys – The Green Fields of France / various
Blue Oyster Cult – The Marshall Plan / Guitar riff from Smoke on the water
Little Richard – Good Golly MM / Piano riff from Jackie Brenston Rocket 88
Miles Davis – Right Off / Jimi Hendrix’s We Gotta Live Together
Jimi Hendrix — We Gotta Live Together / Sly & The Family Stone Sing A Simple Song.
Reunion – Life is a rock (but the radio rolled me)…………………………..B.B. Bumble and the Stingers, Mott the Hoople, Ray Charles Singers Lonnie Mack and twangin’ Eddy, here’s my ring we’re goin’ steady Take it easy, take me higher, liar liar, house on fire Locomotion, Poco, Passion, Deeper Purple, Satisfaction Baby baby gotta gotta gimme gimme gettin’ hotter Sammy’s cookin’, Lesley Gore and Ritchie Valens, end of story Mahavishnu, fujiyama, kama-sutra, rama-lama Richard Perry, Spector, Barry, Archies, Righteous, Nilsson, Harry Shimmy shimmy ko-ko bop and Fats is back and Finger Poppin’ ……….
Patti Smith – “Do you know how to pony, like Bonie Moronie?Do You Know How To Twist? (Land of a Thousand Dances)
Joni Mitchell – Chinese Cafe/Unchained Melody and Harry’s House – the isolated Centrepiece
Jackie Leven – Sacred Bond quotes Tired of Towing the Line.
Busta Rhymes-Dangerous. Uses a kid’s song, too,DK what it is
Led Zeppelin – Whole Lotta Love – references ‘You Need Loving’ by the Small Faces
*******
You accuse these people of being simply mediocre stealers of other peoples’ work at your peril, FIF. I mean, Joni Mitchell, FFS…
I think musicians worldwide should protest against this ruling, dance, much hip hop, acid jazz and similar genres will just grind to a halt with this idiocy taking hold.
Helen,
One quibble.
Both “Whole Lotta Love and the Small Faces “You Need Loving” were taken from Muddy Waters’ ‘You Need Love.” Willie Dixon sued Led Zeppelin and eventually settled out of court in his favour. For some reason, Dixon never sued the Small Faces.
Thanks Shaun!
well now … should have Tabac Royale sued Matisse I wonder?…
http://www.superstock.com/stock-photos-images/900-5868
and speaking of them new fangled auto mobiles – the manufacturers are in so much trouble perhaps they should sue the Dali estate?
http://www.uniquecarsandparts.com.au/farewells_salvador_dali.htm
EMI appeals Down Under ruling
EMI’s appeal will be interesting. I really would not have thought one of the big 5 publishers would argue for a loosening of fair dealing defenses.
d
Helen @ 175.
You’re welcome. Any chance to throw out useless trivia.
Another song to add your great list is another Led Zep tune “Rock’n'Roll.” The drum intro is taken from Little Richard’s “Good Golly, Miss Molly.”
Then there’s this.
Daryl, there’s just too much money at stake on a song like Down Under.
If the damages are substantial enough, depending on Colin Hay and Ron Strykert’s financial positions these days, they’ll most likely be bankrupted, and EMI will be hit with the bulk of the payment – contractual indemnity or not. And, globally speaking, it’s not exactly cashed up right now:
Doubt cast on survival of EMI
Also, if EMI is already trying to settle, it’d be in no position to negotiate if it didn’t keep fighting the decision.
Shaun, I think you’ll find it was Keep A Knockin’ ;). But definitely only inspired by, that one. They’re very different drum parts in the intros.
Try this!https://mail.google.com/mail/?ui=2&ik=c890b85e7a&view=att&th=127044b92bd2820f&attid=0.1&disp=inline&zw
Helen @173:
Love Me Tender = Aura Lee
Whenever someone references or quotes “Land Downunder”, it’s not the nicked kookaburra lick but the quite separate chorus and the MAW composed lyrics.
I also thought this -
“We need to remember that a judge of the Federal Court of Australia earns $ 360,000.00 a year. This is $ 20,000.00 more than what the Prime Minister (who is our top level representative in Canberra) earns a year. Why do you think?”
- was one of the most stupid appeals to authority ever.
Ken Lay at his peak scored an annual Federal(sure you didn’t mean “High”?) Court salary every week. But would you trust him to adjudicate your quarrel with your power provider?
As the GFC just highlighted, level of remuneration is no guarantee of effective judgement in a specialist field.
But yes, Darryl, being EMI, it’s ironic on a few levels.
That said, I really hope they have a sensible judge, who recognises most of the money earned from Down Under was directly due to the original talent of its songwriters, their hard work over the last 30 years, their publisher, and their record labels.
Not a 75 year old 4-line melodic rhyme written for children, or Marian Sinclair, or Larrikin Publishing, or the Music Sales Group.
And who rules accordingly, and not obscenely.
Oh – Cluckkity-cluck – Nabakov 161
So, you have already benefited from your ancestors but don’t want your descendants to benefit from the work you have (allegedly?) created. Does that imply that you are a bit of a selfish scrooge?
Where did you get your material from, that paid for your tux and trips overseas? When are they going to learn that they cannot own what they steal?
Hey! by the way; the word ‘neither’ is always followed by the word ‘nor’ in good English, and people who are greedy about money are said to be ruthless money ‘grabbers’. This word is spelt with an ‘a’ not with a ‘u’.
“Non-writers think that it’s the IDEAS, rather than the EXECUTION that make the book – They’ve got that backward”.
It all depends what non-writers and SOME writers understand by the word ‘ideas’ in this context? It is interesting to note that people who have illegally acquired someone else’s financial reward for the other person’s original creation of a detailed blue print that is complete both in terms of illustrations and text (before it had a chance to be patented) invariably come up with this shallow argument as an attempt to retain what is not rightfully theirs? The same applies for a book (or for some other original artistic work) which has been plagiarised.
This distortion, however, is only for the deluded plagiarists (i.e. greedy money grabbers) who think they can get away with it, by claiming that what they illegally acquired had no financial value to start with. Why then haven’t we heard of thieves breaking into a lavatory block that is locked after night fall to steal the deposits therein?
An original story in short story form that is original in nature, unique in concept, complete in continuity but still unpublished (or awaiting imminent publication) could also be alleged to be a ‘mere IDEA’ allegedly with no financial value.
How could someone get confused with the usage of the words ‘ancestors’ and descendants”? Are we dealing with a person who is growing old backwards? Vitamin E and a drug called ‘Donepezil’ (Aricept) have proven to be very helpful for people suffering from this kind of mental debility.
Ken lay earning $ 18.72 Million a year? What a farce? Sounds like a double dose is indicated in this acute case of dementia.
In reference to the partly filled bottles, it is obvious that it is a lack of virtue rather than a lack of intellectual capacity which inhibits comprehension. Is it not so obvious that the different volumes of liquid in each and every bottle are what generate the variations in the notes played thereon?
Nevertheless, the findings of the court revealed that a substantial part (2/4 or 50%) of the original song – which consists of only four bars from start to finish – was in fact copied … and this finding was even admitted by Colin Hay. So the shallow argument about the partly filled bottles is absolutely superfluous.
The difference between a Barrack lawyer and a Bogan lawyer – apart from both having studied Law – is that the Barrack lawyer was born with a set of virtues that the Bogan lawyer will never possess. Remember that it is only the lawyers who apply the law in the interest of Justice (and not against it) who are appointed to the High Court bench.
What else could have been brought to Australia from the flea markets of the U.S.S.R. after Glasnost?
Perhaps we should interpret your comment to be a suggestion that the men from the barracks and wearing army greens should be deployed under the provisions of Martial Law, to remove all Bolshevist lawyers from the Australian Justice System – before it is too late. Just think of the number of lives that could be saved if a full scale civil war in Australia is avoided as a result. We will – we will – rock you!
Gee, Thready, you sound just like a remixed version of Creative Guru and Fair is Fair. The Lemon Mix. 650 words of leaden insults and more hamfisted analogies in response to a few merry drunken quips made at the expense of supposedly others. Yet no coherent defence of their sillier points that I mocked. You use logic like a baby with a hammer who thinks the world is made of nails. One who’s yet to discover what concepts like “creativity” and indeed “humour” actually mean.
“…and people who are greedy about money are said to be ruthless money ‘grabbers’.”
Don’t get out much do you?
“It all depends what non-writers and SOME writers understand by the word ‘ideas’ in this context?”. In your case, a large straw man.
“So the shallow argument about the partly filled bottles is absolutely superfluous.”
Well ask the person who made it. I just quoted it out of context to take the piss out of Creative Guru, FairIsFair, someone like you.
If you think your points are so strong, why all the sock-puppetry? If you just commented under one net plume, then you wouldn’t have to spend so much time getting all pissy on behalf of all your other little altered egos.
And constantly jabbering on about marxists, bolsheviks, “full scale civil war”? This whole reality-based thing isn’t working out for you is it?
“We will – we will – rock you!”
Not if you boogie like you write.
Oh lordy. Fair is Fair, Nabakov, it is blatantly obvious that RightHandThread is a Creative Guru. Who else could conceive such a brilliant idea as Barrack and Bogan lawyers glassing each other in bloody revolution over copyright law reform?
Once they sell the film rights – they’d be set for life (plus 70 years or whatever). It would be spectacularly entertaining television. Can’t believe the Axis and Allied powers didn’t think of that. Imagine the money still coming in if you took the Hiroshima mushroom cloud footage.
“An original story in short story form that is original in nature, unique in concept, complete in continuity but still unpublished (or awaiting imminent publication) could also be alleged to be a ‘mere IDEA’ allegedly with no financial value.”
Look I aint no lawyer, Barrack/Bogan or otherwise, but I’m under the impression that since the Berne 1989 Convention – all written works are copyrighted. Including your comment above. So as far as I am aware, I don’t think publishing actually matters when it comes to establishing copyright in a written work. And yes, I think the law is an arse.
“it is blatantly obvious that RightHandThread is a Creative Guru.”
I wanted to break it to him/her/it gently as it’s clear there is much that is not obvious to Guru FairThread.
Rumrebellious at 189
“Glassing each other in bloody revolution over copyright law reform” – “glassing” … this is exaggerating things a little – isn’t it? Can we detect a paradox here?
After so much hype about the prospects of millions of dollars being paid to Larrikin Music by E.M.I. as a result of the Kookaburra judgment, suddenly copyright law reform becomes trivia.
“I’m under the impression that since the Berne 1989 Convention – all written works are copyrighted” :–
Has rum-rebellious given any thoughts to the fundamental principle of copyright law that requires the name of the author and the date when the original work is completed, as well as the copyright logo, be affixed to the subject matter for copyright to exist? How difficult is it for a prospective plagiarist to affix on his/her stolen subject matter or manuscript, a date that has been backdated several years?
“I don’t think publishing actually matters when it comes to establishing copyright in a written work”
And what if the genuine author of an original work dies (or is murdered) and his/her manuscript is stolen before it is published? Who is going to know that the plagiarist/murderer is not the genuine author of the original work? I thought that somebody (a few comments back) had already contended (for the same reason) against the lack of security involved in terminating the existence of copyright at the death of the author.
“And yes, I think the law is an arse” :–
Is the law really an arse? To be accurate; you will certainly agree that the arse does not excrete the stinkers – but the anus does! So, would it be fair to say that it is only SOME administrators of the law (viz : some bogan/bolshevist lawyers) who are at the epicenter of the miscarriages of Justice that are caused by the corruption in the legal system? These dishonest and unscrupulous lawyers who manipulate and distort the interpretation of the law to suit their own arguments, in an attempt to realize their fraudulent claims, cannot accurately be described simply as the Law, but to be accurate can be said to be the anus of the Law.
Hi,
Meh, I think my hypothetical of lawyers glassing each other was less sinister than your hypothetical preemptive removal of bogan/bolshie lawyers by military force to prevent a hypothetical civil war over copyright law reform. However, that is an awesome plotline for a movie.
But srsly, the criticisms made above of the existing laws – primarily that its duration is extensive and the lack of fair use inhibits creativity and it has not adapted to suit the current technological age; are real and valid and perfectly understandable from a lefty blog.
The law can’t help itself; but we can change it.
For an example of how the law impacts a remix artist; check out Hugh Atkin’s art and blog. And this EFF submission covers alot of the broader issues as well (pg 13 onwards).
I didn’t know where else to post this; but the ACTA Treaty has been leaked and is on pirate bay.
Helen at 155 –
It would be far too time consuming to research all the lesser known songs you have mentioned. So, focus will be placed only on “Can’t help falling in love with you” by Elvis Presley.
Please be informed that the correct title of the song that “Can’t help falling in love with you” by Elvis Presley copies is “Plaisir d’amour” and not “Chagrin d’amour” as you have quoted. The music for “Plaisir d’amour” was composed in 1780 by Johann Scwartendorf (also known as Jean Paul Egide Martini, sometimes also known as Giovanni Martini) who died in 1816. The lyrics for the song was based on a poem by Jean de Florian (1755-1794) whereas Hector Berlioz (1803-1869) was responsible for only the musical arrangements.
When the song “Can’t help falling in love with you” was released by Elvis Presley in October 1961, the copyright in “Plaisir d’amour” had already expired 95 years prior to this release. Copyright in these days lasted for the entire life time of the author/composer plus 50 years after his/her death. Therefore,1816 plus 50 = 1866 and 1961 minus 1866 = 95. This is why there was no legal action initiated against Elvis Presley and/or his people for infringement of copyright at that time.
Even though Elvis Presley only made a reference to “Plaisir d’amour”, it is factual that many other people also recorded that original song in its entirety (with both the same music and lyrics) even though in some cases the lyrics were translated into other languages. To name a few : Joan Baez in 1961, Marianne Faithfull in 1965, Nana Mouskouri in 1997, Karrin Allyson in 1999 etc.
Now – “Can’t stop falling in love with you” copying “Plaisir d’amour” has two conspicuous similarities with the “Kookaburra” case. (1) Only two out of four bars of the chorus (repeated throughout the original song from start to finish) have been copied by the Elvis Presley song. (2) The catchy tune (for its time) of “Plaisir d’amour” was still in existence (but dormant) in the subconscious mind of people until awaken by “Can’t help falling in love with you” when it was released in 1961.
The VITAL difference between the two cases is : Marion Sinclair died in 1988. This means that when legal action was started in 2007 by Larrikin Music, the copyright had another 31 years to go before expiration.
1988 + 50 = 2038. 2038 minus 2007 = 31.
Damages have been determined: http://www.abc.net.au/news/stories/2010/07/06/2945781.htm
I wonder how much that actually is?
d
5% feels about right. Well done Justice Peter Jacobsen.
Actually more than I would have thought, but certainly isn’t the kind of monstrous penalty that some had suggested.
Decision here