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.

Filed Under: australia, copyright, folk song, kookaburra
Companies: emi, larrikin music

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  1. icon
    Miff (profile), 31 Mar 2011 @ 2:37pm

    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.

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