Australian Court Says Men At Work's 'Down Under' Infringes On Folk Song; Only Took Decades To Notice

from the copyright-gone-mad dept

Well, apparently not all Australian courts are sensible when it comes to copyright rulings. While we recently wrote about the wonderful iiNet decision, in the comments, someone pointed to a bad decision made on the same day. It’s a case we wrote about last year involving the famous song Down Under by the band Men at Work — a big hit back in the 1980s. But in 2007, after seeing a joke on a TV trivia program about that song’s similarities to an old Australian folk song, the publisher who held the copyright on the folk song sued. Yes, this was decades after the song was popular, and the publisher, Larrikan Music didn’t notice any similarities at all. It seems like this should be an open-and-shut case. The “use” was minor, at best, and didn’t do any damage to the market for the original song, “Kookaburra,” which is popular among schoolkids, apparently. There’s simply no harm done and anyone with an ounce of common sense should see that.

But… that’s not what the court found. It’s ruled that Men at Work infringed on Kookaburra, and now the band members and their record label need to pay up — potentially huge sums. It’s difficult to see how this makes sense under any sort of copyright regime.

Filed Under: , , , ,
Companies: larrikan music

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Australian Court Says Men At Work's 'Down Under' Infringes On Folk Song; Only Took Decades To Notice”

Subscribe: RSS Leave a comment
PaulT (profile) says:

Re: Re:

I’d like to see a system where 25-30 years for copyright is the norm, with an option for up to 2 extensions during the life of the artist. That would allow creators to profit from their work as much as possible, while ensuring that the legal quagmire that’s preventing the release (or even proper storage, in some cases) of many works is minimised.

another mike (profile) says:

Re: Re: Re:

I’d take it even further. Make copyright expire into public domain in just 7 years unless the rights-holder pays (through the nose) to extend the copyright for another 7 years. We’ll give them unlimited extensions in exchange for the short monopoly.
I think you’d also have to offer a carrot to the forgetful rights-holders and orphaned works. A grace period of, say, 3 years where the copyright can be reapplied and the song taken back out of public domain. So a rights-holder basically has a decade to decide if the copyright is profitable enough to keep paying for.
Think about how many songs from before 2003 that you know. Then how many of those are still a significant source of income for the artist. If it’s still a profitable song then the rights-holder has the money to pay for a copyright extension.

nasch (profile) says:

Re: Re: Re: Re:

A grace period of, say, 3 years where the copyright can be reapplied and the song taken back out of public domain.

Nothing should ever be removed from the public domain IMO. Orphaned works can be dealt with by an opt-in system, rather than the can’t-even-opt-out system we have now, but if you forget to renew your copyright, tough. Of course the lobbyists will never let anything like that happen.

Anonymous Coward says:

Re: Re: Re: Re:

Great idea, except:

1. Every time renewal comes up, it should cost double whatever they paid last. There needs to be a *really* strong incentive against renewal, or monopolists will simply keep monopolizing. This is particularly problematic, in that in the case of really popular (or culturally significant) cultural ‘product’ they can keep generating billions just by issuing “greatest hits” or “remastered” versions or some other bullshit that has absolutely nothing to do with creating anything NEW.
(I’m thinking in particular, of the recent Beatles “remasters” — including the dubious con-job known as “Beatles in mono box set”.) Hell, at least Beatles: Rock Band was somewhat interesting, and provides the illusion of “participating in culture”.

But back to my original point: there needs to be a strong disincentive against such monopolies, lest we get right back to a point where monopolists (oops, I mean “rights-holders”) actually start believing they’re “entitled” to monopoly privileges as a matter of “right”.
They need to be REALLY conscious of the whole “copyright bargain” thing, or we’re RIGHT back to the point where they can portray the Public Domain as “unfair”.

Maybe make the copyrights only last 2.5 years, with a maximum of 1 renewals, for a TOTAL of seven years?

Still enough time for the latest, corporate “one-hit wonder” to go “multi-platinum”, but short enough so as not to become socially odious.

RD says:

Interesting question

“…and this is why rights should cease after the creator dies and not be some “perpetual pension” for the next of kin or Joe Schmo Inc.”

Actually, this begs an interesting question. Lets say Colin Hay died (or whomever has the copyright) and this gets passed on to his heirs (or another corporation). Now, 3 decades later, someone comes to sue. Do they sue the heirs/corp? Must be, since they are left holding the bag and have to pay for the sins of their “fathers.” Now, if its a big media corp, you can bet your ASS they would try to get it dismissed on the grounds that “we didnt do it, this other guy did” and thus making sure that copyright ONLY works ONE WAY.

jsl4980 (profile) says:

Some extra details

Glad you posted on this, but I think if you expand on the details it sounds even worse (the ruling, not the song).

The original song was written by a school teacher in 1934, who died in 1988.

Land Down Under was written and released in 1979 and 1981.

Larrikin Music (aka Copyright troll) bought the rights in 1990.

Larrikin Music found out about the similarities in 2007 because of a game show on TV and decided to sue.

Larrikin Music (aka Copyright troll) has done absolutely no work in this situation. They had nothing to do with the creation of the original song. They didn’t notice the similarities. The only effort they made was to wait for the originator to die, and now reap rewards that the originator obviously didn’t feel entitled to. The originator was alive when the song was an international hit, and if she felt entitled she would have sued a long time ago.

Arfnotz says:

Re: Some extra details

A copyright maybe freely sold, transfered, or otherwise conveyed. The same is true for patents, stocks and bonds, land, etc. The fact that the rights to the folk song were transfered, and that it took the owner umpteen years to notice is unimportant. Whether morally right or wrong, a copyright is basically a set of enforceble rights (a licencse to sue, if you will) and who ever owns them may go to the courts to do so.

I question whether the original music really is a “folk” song, I thought folk sosngs were “everyone knwo it and its been around since Jesus was in thrid grade and no one knows who wrote it.”

HymieS (profile) says:

It's all a Croc,(k),, ( pardon the pun)

IF,,,, as it states in the article,, the song is considered a folk song, sung by school children, it should more than likely be considered public domain. Especially if it is sung in school recitals.

Could you imagine some descendant of Francis Scott Key suing the U.S. gov’t and every professional sports team for using and broadcasting the words to the Star Spangled Banner? Remember,,, It was written as a poem,, He never gave permission to have it set to music. Or is that considered a derivative work?

RobTheBold says:


I thought I remembered the tune. I pulled out a book of Children’s songs from my youth. Kookaburra is there on page 188, credited to Marion Sinclair. So calling it a “folk song” seems to be inaccurate and misleading, since that usually implies the composer/author is lost to antiquity.

What doesn’t seem to be there is any resemblance to “Down Under”. I found a recording and played it, then played Kookaburra and I just don’t hear it.

Rose M. Welch (profile) says:

Re: Similar?

The ‘original’ song has the same melody and similar lyrics (once translated) as an old Welsh folk song about a black bird. Please note that the ‘author’ was a music teacher, with a degree in music.

Also, it’s just the flute solo that’s supposed to be ‘similar’ Similar, in this case, meant ‘two bars’.

RobTheBold says:

Re: Re: Similar?

OK, now that I listened more carefully to the flute riff in the instrumental section, I hear it. The flute definitely quotes “Kookaburra”. Having never heard the Welsh tune, I’ll just take your word on that.

In the songbook arrangement, the quoted passage is, as you said, two bars long. The entire melody of “Kookaburra” is 8 bars long. I don’t know if I’d call 1/4 of something a substantial part — “Kookaburra” is a pretty short song.

In any case, the riff is rather incidental, not part of the verse or refrain of “Down Under”.

Rose M. Welch (profile) says:

Re: Re: Re: Similar?

Agreed. It’s not a substantial part of ‘Down Under’ and I don’t believe that it helped ‘Down Under’ make money, or that it hurt ‘Kookaburra’. In fact, I think that ‘Kookaburra’ is a national folk song, sung by Girl Guides and schoolchildren the country over, and that it’s appropriate to reference it in a ‘Down Under’, which is song about Australia. If they had referenced it in the lyrics, it would be fair use. Why is it different with the melody?

interval says:

These silly “infringe” lawsuits have to stop. If these stupid suits are ruled this way then all musical creativity will have to cease. Think about what would have happened to Elvis if this litigious atmosphere existed in his time. He’d have gotten no where, because the country blues singers would have sued him, in turn cotton pickers would have sued the blues men, etc…

F’n ridiculous.

Rose M. Welch (profile) says:

The two bars of the flute solo are not a substantial part of ‘Down Under’ and I don’t believe that it helped ‘Down Under’ make money, or that it hurt ‘Kookaburra’.

In fact, I think that ‘Kookaburra’ is a national folk song, sung by Girl Guides and schoolchildren the country over, and that it’s appropriate to reference it in a ‘Down Under’, which is song about Australia. If they had referenced it in the lyrics, it would be fair use. Why is it different with the melody?

Last, but not least, Marion Singer is quoted as having taking the four bars from the actual sound that the kookubura bird makes, so maybe somebody should sue Larrikin Music on behalf of the bird…

akston (user link) says:

That is the most ridiculous thing I have ever heard.

The destruction of the historic idea that culture is passed from artist to artist to be riffed on foretells the death of culture. What can we expect next – for owners of the rights to old Sci-Fi movies to sue Moore and Gibbons for their reproduction of movie posters in Watchmen? If Homer were alive today, would his fellow bards sue him for infrigement? Probably. WIPO and ACTA will rightly be widely ignored by the actual people who produce culture, and this will end up with a lot of artists in jail.

Henry Emrich (profile) says:

What does TAM "think?"

1. It doesn’t “think” anything:

Anybody remember “Eliza”, the virtual psychoanalysis program? I’m pretty sure TAM is something like that. It and other IP-trolls are nothing but more or less poorly-designed propaganda-bots (based on proprietary, closed-source software, of course).
That would explain why TAM can only regurgitate RIAA talking-points. Anything beyond a fairly-limited collection of stock phrases causes It’s poorly-written code to either spit out broken crap like “no…but…unless”, or crash, and be unable to post more propaganda.

TAM hasn’t responded because whoever’s running it hasn’t managed to reboot it, yet.

jupiter (profile) says:

exponential payment

Copyright owners should have to pay to renew their copyright every three years, and that cost should increase exponentially over time. $1 to copyright it the first time, $10 the second, $100 the third, $1,000 the fourth, etc.

If they’re still making over a million a year on the work after 21 years, it’ll be worth paying for, otherwise it becomes public domain, and the owner has to find other ways to make money. Copyright truly hurts any work that can’t turn a profit. It can sit unpublished, unavailable, and unprofitable for decades.

Lachlan Hunt (profile) says:

This result of this case is ludicrous not just becasue the current rights holders didn’t own the rights at the time the song was written and released, but because new works taking inspiration from older works is exactly how a good, healthy creative culture is supposed to work.

Look at painters reusing the artistic styles of their predecessors; authors reusing and reimagning the stories of old, and incorporating common themes; musicians reusing the same chord progressions of old classic songs. This recent ruling, combined with the indefinite cycle of copyright term extensions, will only serve to kill this inspirational culture for good.

For the comments here making suggestions about how long copyright terms should be, keep in mind that term extensions are bad. Keeping track of which works had their copyright extended and which didn’t is already difficult enough.

The ideal system would be a fixed term from the year of publication or, if it can be reliably determined, the year of creation. This would make the system fair and easy. There’s no need to know about when the author died, or whether the copyright is held by a corporation, or whether the copyright holder applied for extensions. If the work has a known creation or publication year, determining its copyright status is easy. A reasonable term would, I think, be somewhere between 20 and 40 years.

This still leaves the problem of orphan works who’s authors cannot be found, and works without known publication or creation dates, but at least with a relatively short copyright terms, you can still guarantee entry into the public domain as the earliest known year the work was discovered + length of fixed copyright term.

Mr Big Content says:

Doesn’t Matter About The Delay

Think about it. Imagine one of your children was murdered. But you didn’t notice immediately, until say, 20 years later, when somebody pointed out to you that there was an empty place at the dinner table every day. Does that make it any less a murder? Wouldn’t you still want the offender persecuted?

mermaldad (profile) says:

In Defense of the Plaintiffs

While I think it’s unfortunate that Larrikin Music chose to sue over this, I can see why the court ruled as they did. Kookaburra is such a short song. I count 37 notes. It’s so short that identifying the song by name is probably infringement. (Note to LM: That was sarcasm; please don’t sue me.) The part that Men At Work used is actually two pieces, each 11 notes long. So that’s 59% of the tune quoted, multiple times, in Land Down Under.

While it’s true the notes aren’t part of the versus or chorus, they are the melody line for an instrumental interlude between verses and therefore feature prominently in the song. While not solely responsible for the success of Land Down Under, they do help to give it that Australian flavor.

I agree that the current copyright laws are overboard, but for now they are the law.

Anonymous Coward says:

Colin Hay was actually on the Australia TV show “The 7pm Project” last night and stated that Men At Work were not the ones being sued. It was him, personally.

Having only learned of this recently I’m hugely disappointed. I grew up with ‘Down Under’ being played everywhere and it just plain old sucks to see a London firm (Larrikin Music) suing an Australian band over 2 bars that are similar to some other Australian song.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...