Wednesday, February 24, 2010


I've been catching up on a truly horrendous copyright judgment out of Australia a couple weeks ago: Colin Hay, Ron Strykert, and EMI records were found guilty of plagiarism for borrowing a couple of bars from a children's song in Men at Work's iconic "Down Under."

Here is the song in question, "Kookaburra."

If you can already place that in "Down Under," then congratulations, go to the head of the class, you are a world class expert on 1980's popular music. For the rest of us, listen to Men at Work and try to spot the borrowing: "Down Under"

Did you catch it? It's in the flute riff at 0:53. Eleven entire notes, not even part of the song's melody. For that, the Larrikin Music Publishing firm claims they're entitled to $33,000,000, despite having had nothing to do with writing or publishing those notes in the first place. Marion Sinclair, the woman who wrote "Kookaburra" for the Girl Guides in 1935, never even bothered filing on the copyright until decades later. After she died in 1990, Larrikin acquired the copyright and started looking for people they could enforce it upon:.

The company has hit the jackpot since buying the rights to Kookaburra in 1990 for just $6100. Mr Lurie estimates Larrikin has netted "hundreds of thousands’’ of dollars from licensing agreements with publishers and authors around the world, who had always considered it to be in the public domain.

"It’s earnt a hell of a lot of money for us since we’ve bought it," Mr Lurie said.

Lurie also says,

"Of course it would be disengenuous for me to say that there wasn’t a financial aspect involved, (but) you could just as easily say what has won out today is the importance of checking before using other people’s copyrights."

Did you hear that last line in the faux-innocent voice of Eric Cartman? I did. Publishers like to talk about piracy, but this is piracy! Not that petty shoplifting stuff that the RIAA likes to complain about - I'm talking Old School, let's sail around and find someone productive to plunder piracy.

Now, Larriken are music publishers, not musicians, but I'll bet they know the difference between musical borrowing and musical referencing, and that this incident is clearly the latter, placed in the accompaniment not because they couldn't think up their own tune, but because of the Australian flavor it would evoke. Never mind; they found a judge who doesn't understand that and they can laugh like Kookaburra all the way to the bank.

Copyright is supposed to encourage creative production by ensuring that the creator profits from his creation. Fair enough. But this copyright trolling - a close cousin to patent trolling - does the opposite. Of the three parties involved - Hay & Strykert, Sinclair, and Larriken - clearly the most creative are being pillaged by the least creative.

[PS. Forgot to mention that the parties are supposed to appear before the judge again this week after negotiating damages. I'll have the update as soon as I see it.]

[Update: The decision is now under appeal.]
[Update 2011: The appeal has been lost]


James Hanley said...

The world is full of bastard-coated bastards with bastard filling.

Perplexity Peccable said...

Have you followed Larry Lessig's work on "remix culture"? Actually, I think Larry has it wrong, in the sense that remix and reference of other folks work is NOTHING NEW. It is actually the way music and theater and fiction and basically all creative endeavors evolved, the way our brains evolved to make creative works. If this "piracy becomes common practice, then we have ALL lost, and no one will be able to create anything new for fear of someone imagining it references something that the creator probably doesn't even remember ever hearing. About as counter to the original spirit or copyright law as anything I've heard of. Jack Bernard would be ... well, more than annoyed, I am sure.