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Yesterday we saw a ruling on Larrikin Music Publishing Pty Ltd vs EMI Songs Australia Pty Limited about the Men At Work song ‘Down Under‘  which is the upshot of a fight last year by the same two companies over who owned the rights to the ‘Australian’ song ‘Kookaburra’ (Wikipedia, YouTube). The argument was over whether the composer of Kookaburra (or the composer’s rights holder) had any claim to royalty rights from Men At Work. This was largely the result of an ABC TV Australia celebrity game show in 2007 that blatantly pointed out the similarity between the flute introduction/lick to Down Under and the first two bars of Kookaburra.

The conclusion? Men At Work at various stages knew that they were copying a substantial part of Kookaburra, even up to the point of a 2002 concert by Colin Hay (lead singer, Men At Work) where he sang Kookaburra lyrics over the top of Down Under. Many Australians seem incensed that although they can hear similarities, it’s not at all the same and people should get their hands off Men At Work. Or that this is some money grabbing exercise by Larrikin. Let’s lay this out. Kookaburra is a short ’round’ (like ‘Row Row Row Your Boat’, or ‘Three Blind Mice’). It’s only four bars long. As such there’s not that much one could copy! Any copying, therefore, is liable to be a substantial part of Kookaburra. This is merely an observation at the outset, no judgement made at this point.

First off, we have to recognise that the tunes are in a different key and a different tempo. By and large, both plaintiff and defendant agreed this doesn’t amount to that much (although there was some arguing around the edges), as ‘it does not make any difference what key the song is sung in because the relative pitch remains the same’. This is why a key change in the middle of a both works and is cheap, it doesn’t make it a new song but it kinda sounds a bit different thus the listener doesn’t become bored with a simple tune halfway through. It’s a bit like shining a yellow then an orange light on a statue, or reading these words in English or Spanish. Similar argument is valid for tempo. If we can agree that tempo and key are irrelevant, let’s get down to the nuts and bolts.

Here’s Kookaburra, transposed into the same key as Down Under.

And here’s the flute part of Down Under:

Oh my, bars 1 and 2 of Kookaburra are note perfect for 2 and 4 of Down Under. Two bars from a four bar song round? That’s 50%. Substantially copied. Case for the plaintiff.

And Mr Ham (the flute player, yeah the one sitting in the tree playing the tune at the start of the video clip) has the balls to say this is all about greed as if he’s the one being wronged. Sure it’s about greed. His and his colleague’s greed in not giving money to the legitimate claimant. At no time did they offer the rights holder, either the composer before she died or the estate after she died, a percentage of performance or mechanical royalties. Not in 1979 when it was first recorded. Not in 1983 when it became a worldwide smash. Not in 1988 when the original composer died. Not in 2002 when the lead singer of MAW sang the Kookaburra lyrics over the top. Not once. Ever. Commonly, that’s theft. And it beats the crap out of me why there’s a bunch of musicians and artists out there defending them.

I encourage people to read both judgements. IANAL but they’re fairly straightforward. I’m all ears to anyone willing to point out where His Honour is wrong.

(For those paying attention to the tags I’ve added, you might also be interested in why I added Mr. Lobachevsky’s name)

[edit: Feb 5th, minor typographical corrections]

[Update: Oct 11th: Men At Work denied appeal to High Court of Australia]

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