copyright or wrong?

One is a folk song about the native Kookaburra that pretty much every kid learns in their early school days, the other an infamous rock anthem synonymous with stereotypical Aussie culture, and they’ve caused quite the kerfuffle of late.

Last month a Federal Court judge found the Australian band Men At Work guilty of plagiarism, claiming that the flute riff from their 1981 hit “Down Under” copies the melody of “Kookaburra Sits In The Old Gum Tree”, a folk tune written by a school teacher by the name of Marion Sinclair way back in 1934. Justice Peter Jacobson said that the song infringes on copyright law because it “replicates in material form a substantial part of Ms Sinclair’s work”.

But who filed the suit, and why now? Turns out it’s a publishing company called Larrikin Music, who acquired the rights to “Kookaburra” in 1990 following Sinclair’s death. Apparently the company sought legal action after certain similarities were discovered on the ABC program Spicks and Specks (top show by the way).

Let’s take a look at the two songs.

Kookaburra Sits In the Old Gum Tree (listen 0:03 – 0:08)

Down Under (listen 0:50 – 0:59)

As you can see, the similarities are rather small. The flute riff in “Down Under” is in four sections, only two of which allude to the melody “Kookaburra sits in the old gum tree, merry merry king of the bush is he“. The riff is short, does not feature in the chorus nor is it even really a major draw card for the song. Sinclair never made a peep in the 9 years the song was around before her death – hell, no one even noticed until a television program 26 years after its release! If this situation didn’t involve a party that stands to gain substantial profit then the similarities would have been looked upon as merely a homage, or just some increased Aussie charm.

Really what we have here is a case of “opportunistic greed” – a company that has seized the chance to make a hefty profit by abusing the copyright laws. Now you may think that’s a bit of a stretch, but frankly, when it comes to intellectual property law in regards to music, I don’t think it is. With cases such as this dangerous precedents are set, ones that threaten the very core of musical interpretation and creativity.

When I initially came across the case in the newspapers I didn’t really look too much into it, merely thinking it was an absurd and rather sad situation. It wasn’t until about two weeks ago when I saw a video on Youtube about the ‘Amen break‘, which is a perfect example of musical appropriation, that I realised just how selfish the suit filed by Larrikin really is.

The video is a 2004 audio installation called “Can I Get An Amen?” by artist/writer Nate Harrison, which chronicles the most (illegally) sampled drum beat in the history of recorded music. As a brief summary; the video is the history of a section of a drum solo from the 1969 track “Amen, Brother” by The Winstons, which was used as a sampled drum loop in early hip-hop, drum and bass and jungle music. As the video explains, it was “a six-second clip that spawned several entire subcultures”. In spite of all this the Winstons have never sued or requested any royalties.

Harrison’s audio installation is important and relevant because it echoes the events of the Down Under/Kookaburra/Larrikin case as well as relating to the idea of free information and current copyright law in general. If you have a spare 18 minutes then watch it, get inspired…then get angry and send a hate email to Larrikin Music. ;)

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