Monday, February 8, 2010

Copyright Laws At Work

Every time you listen to Men At Work's "Down Under", a kookaburra gets its wings! The pop masterpiece reached number one in the UK and US in 1983, was performed at the closing ceremony of the Sydney Olympics, and was voted fourth best Australian song of all time in 2001. Now an Australian court has ruled that the flute bit was plagiarised from the song "Kookaburra", which I hadn't heard of until today but is apparently beloved the world over by girl guides, Australians, and sundry others. So beloved that you may wonder why it took until 2007 for someone to notice the similarity between the songs. But there you go. The band confessed that they knew what they were doing, so now the song's owners, Larrikin Music, stand to make a tidy profit from royalties.
This is all bad news for those who are already concerned about the long arm of the copyright law. "Kookaburra" was written in 1934, and its creator died in 1988; Larrikin bought the rights in 1990 for AU$6,100 and has since made what its parent company's music director calls "a hell of a lot of money" from users who had been under the impression it was a public-domain folk song. Copyright laws don't protect creators, per se: they protect copyright holders.
The bigger picture here is, what does it mean for "Down Under" to reference "Kookaburra"? According to Men At Work member Greg Ham, he added the flute riff to make the song seem more Australian. The song lyrics refer to Vegemite (invented 1922; owned by Kraft), and we instinctively know that Kraft would be insane to sue Men At Work for the use of its trade name. But in terms of what the song is doing, aren't the reference to Vegemite and the reference to "Kookaburra" equivalent? It's not the taste of Vegemite the band is giving its listeners, but the idea of Vegemite. And I think it's the same with "Kookaburra" - yes, the notes are similar, but (assuming you know the song) what the listener is supposed to get is the idea of "Kookaburra".
Music copyright laws need to be more lenient in this regard, and acknowledge the fact that a tune can become sufficiently embedded in the public consciousness (ironically, because copyright terms last so long) that obvious reference to it or riffing on it has to count as fair use.
I'm sure Colin Hay and his band mates agree. So in future, whenever I refer to Australia on this blog I shall call it Australia: Where Women Glow And Men Plunder. Fair use, mate.


jacked UP jazz said...

Kookaburra sits in the old gum tree, merry merry king of the bush is he. Laugh kookaburra, laugh kookaburra , may your life be free.

They made us sing that damn song in the third grade.

That is all.

Unknown said...

The final line should actually be "Gay your life must be", but I suppose these days that might cause disruption in the third grade...

I always assumed that the "Kookaburra" quotation in "Down Under" was obvious to certainly was to me when I heard the song as a 12-year-old. I just thought of it as a bit of pastiche, although that's probably not the word I would have used at the time.