Appeals Court Still Says 'Down Under' Infringes On Decades Old Folk Song

from the men-at-work dept

A couple years ago, Australian music publisher Larrikin Music accused the iconic 80s Australian band “Men at Work” (and its label, EMI) of infringing on its copyright for the classic Australian folk song Kookaburra in their hit song Down Under. You can listen to both songs in the videos below:

If you can’t tell (and some can’t), a bit of the flute line in the Men at Work song is similar to the meldoy in Kookaburra. Most normal people would call this a tribute or an homage. But not Larrikin. The company, which only got the rights to Kookaburra (which was written in the ’30s) in 2000, hadn’t even noticed the similarity until it was mentioned in a game show on TV. So, of course, Larrikin sued. And, amazingly, it won… leading the court to grant Larrikin 5% of all of the song’s earnings.

This is ridiculous for a variety of reasons. It’s clearly not a straight copy, but a use of the well-known folk song to represent the atmosphere of Australia. The fact that Larrikin didn’t even notice until it was pointed out on TV should also suggest that this wasn’t some massive infringement issue. Finally, the fact that the song was a hit in the early ’80s should have set off some sort of statute of limitations issue. Instead, Larrikin won…

EMI reasonably appealed the ruling, but chillienet points out that Larrikin has won on appeal as well, as a three-judge panel ruled that the song is infringing. The court even ordered EMI to pay the court costs as well. I guess the lesson is clear: don’t promote decades old folk songs in your music in Australia.

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Companies: emi, larrikin music

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Comments on “Appeals Court Still Says 'Down Under' Infringes On Decades Old Folk Song”

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Miff (profile) says:

As an amateur musician, let me say this (without being familiar with the songs in question in the article):

1) Music does not operate like some other art forms, such as writing, in that a single expression does not represent a specific idea. For example, the sentence “He went to the store.” can only mean one thing, that a male traveled to a store. The series of notes C(1/4)-E(1/8)-G(1/4)-E(1/8)-C(1/4), however has no specific meaning.

2) Since music has no specific meaning, it operates on a different level of conciousness then literature, and therefore it’s difficult to tell whether a series of notes is wholly original or based on something remembered.

3) The only way to know for sure is for music to be composed by those who have never heard any other music before, which would be nearly impossible to do.

Lauriel (profile) says:

Re: Re:

I agree completely with what you say about music, but I’d like to highlight the danger of using a hard and fast rule for expression v meaning in any genre.

Let’s use literature, in which you say one expression only has one meaning:

a) Woman without her man, is nothing.
b) Woman: without her, man is nothing.

Same words, or string of letters composing an idea, however completely different meaning.

Another example:

a) He didn’t marry her because she was rich.
b) He didn’t marry her, because she was rich.

Even in literature, the same foundation letters can be used to create expression that encapsulates a different idea, even if the basic ‘notes’ are the same.

Completely unrelated, I had the pleasure of being in (lead singer of Men at Work) Colin Hay’s audience the first time he performed that song after the ruling. He got a standing ovation, and rightly so. I’ve not seen anyone applaud Larrakin. Just because the court agrees with you, still doesn’t mean the general population (read: market) will.

Anonymous Coward says:

Re: Re:

Sure, they’re welcome to 5% of the royalties that the downloader earns from using that copyrighted work. I’m feeling generous, let’s give them 100% of the royalties that downloaders earned.

If there was a copyright violation, EMI got off easy, it didn’t even pay the minimum statutory damages that they would demand in copyright cases. Let’s see how they’d feel giving up $700 per sale, stream or broadcast of the song to Larrikin.

Ken (profile) says:

Re: This is Theft.

One of the most egregious examples of cultural theft is Disney and their banning of the Movie “Song of the South” The Uncle Remus stories was a compilation of black folk lore during the slave days. This part of black history has nearly been completely wiped out due to political correctness.

The first African American to ever win an oscar was the portrayal of Uncle Remus in Song of the South. That has now been expunged from history so now only older people who remember watching the movie have any idea what these stories are all about.

Ron Rezendes (profile) says:

Explanation please....

How does a company, who didn’t own the rights at the time of the “infringement” (obviously used in the loosest possible terms even for those who are the most die hard pro-copyright), even make a case for damages when they didn’t own the rights at the time this occurred?

Apparently, both the justice system and the direction in which water flows South of the equator are in direct contrast to what happens North of the equator!

I consider myself pretty open minded but I’m having a tough time wrapping my head around this one (or two if you count the appeal that was also lost).

Nathan F (profile) says:

If I were EMI or Men Down Under, I would remind Larrikin that 5% of nothing.. is nothing. And pull any product that has that song from the shelves that they are legally able to and deny an broadcast/performance rights to anyone requesting the use of the song.

Yes I know it is a bit of cutting off ones nose to spite its face, but if Larrikin is going to be a dick about something written 80 years ago and should have been in the public domain to begin with then to hell with them (Larrikin and company).

abc gum says:

Re: See, this is why

CHT, you insensitive clod.

Can’t you see that Larrikin Music needs this sort of incentive so that they will be encouraged to produce additional works of art? Clearly, copyright is working here as intended and we will soon be seeing a new CD hit the charts from Larrikin Music. I’m sure it will kick ash.

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