his wholiness the rev drjon (drjon) wrote,
his wholiness the rev drjon

copy rights and wrongs

here's an interesting piece that a mate of mine (he's a musician) on FB wrote. i thought it deserved wider reading...
Kookaburras Down Under, and copyright wrongs - David Peachey

Hi all,

I'm just wishing to vent a couple of issues on last weeks' ruling against Men at Work for "ripping off" the well-loved Aussie tune Kookaburra in their most famous song. It's mainly that there are a few issues glossed over in the hearing which make the situation look especially rotten. So here goes:

Larrikin Music is not the creator of the work, nor is a descendant or reprsentative of the creator.

In fact, as afar as I can gather, not a single sued cent will go to the creator Marion Sinclair, nor her family, nor used to support the Girl Guides, ie. the group for whom the Kookaburra song was written for.

I'll add here that if the lawsuit were actually in Sinclair's favour, I'd have minded a whole lot less, but still would have wondered what the fuss was about. But from here in my rose-coloured bubble, I have this wacky idea that copyright laws are there to protect the rights of the creator.

The fact that Larrikin Music's interests are totally alien to the interests of the original writer was ignored. This is moneygrubbing, nothing less.

It's a case of nothing more than litigious bullying by Larrikin Music.

This touches back on LM not being the creator. The problem which I see is that LM is relying on a point of law in place of legitimate creativity (or nutrturing/protecting creators).

My issue here is that the copyright law is for protection: a shield, not a sword.

I wish there were some perjury-like law where people who abused the letter of the law for their own gain get rightly punished.

Which may mean more lawyers in courts? ;)

The "composer" of the original song did not write the music, exclamation mark.

Some musicians have pointed out that the melody used by Sinclair for Kookaburra (and subsequently used by Men at Work) is taken from an old Welsh song, �Dacw ti yn Eistedd, y 'Deryn Du�. Which, if you don't know your Cymraeg too well, refers to a blackbird.

So what I'm not understanding here is how Sinclair gained copyright of a melody already in the public domain simply by putting words to it. Is there a real explanation for this? Please give it to me, I have a pile of Mozart I plan to rifle through and claim as my own.

Even by admitting that Men at Work used the riff (intentionally or otherwise), Sinclair's actual creative input was only the lyrics, which are untouched. So my point here is that Marion Sinclair never had any hand in the creation of the melody.

Lets stretch it and assume that Sinclair had no idea the Welsh song existed. So by coincidentally using a melody "already in the public domain" how does one claim copyright because just because they *think* the tune is original? Again, explain that one.

This is a later thought, after research: the melody is musically out-of-context, making it a different tune.

The musicologist (Dr Andrew Ford) pointed out that the chords beneath the kookaburra tune are unrelated to the chords in Down Under. This influences any melody upon that structure. Unfortunately this was poorly argued ("a bit like shining a different light on it"??), so here's some explanation that may make it clear that they are actually different tunes:

In Kookaburra, the melody goes:

Major Key:
|| 5 5 5 5 6 - 6 6 | 5 - 3 - 5 - 3 - | 3 3 3 3 4 - 4 4 | 3 - 1 - 3 - 1 - ||

Ok, I'm using the numbers to show the note of the scale, just as if you were learning it on recorder. Grab yours and try it out (I know you have one). So it starts on the 5th note. Now the 'same' melody in Down Under actually gets written this way:

Minor Key (7, 6 & 3 notes are all flattened):
|| 7 7 7 7 8 - 8 8 | 7 - 5 - 7 - 5 - | 5 5 5 5 6 - 6 6 | 5 - 3 - 5 - 3 - ||

Stripped of its key, chord & bass yes it's the 'same' melody, but then so is most music. This is too narrow a definition to say that one melody is the same as another, as the musical context is very different. Unfortunately, the case took both melodies out of context. You may as well sue someone for using a minor scale.

I truly hope this situation reverses, as it sets horrible precedents for creative artists. Should musicians (and other artists) always be looking over their shoulder as they create, "just in case"? Should we now deny all our influences and inspirations?

I suppose cases like this highight certain weaknesses in copyright law. I do understand that copyright law is not perfect and often there's grey areas to be debated (so the copyright holder doesn't abuse the fact they hold the rights, for example). However, I think since creativity is constantly evolving, developing and extending, so should the laws that protect it.

Perhaps we dispense with the on/off lifespan of current copyright, and instead have a depreciating scale over a similar time period? As the rights go through the processes of inheritance and especially acquisition, its value is lessened, perhaps along with the powers to enforce them. Think of it as copyright having a series of half-lives, or a smooth downward-bound curve, which would peter out completely in say 80 years time.

One thing to consider is that the longer a work exists following its publication, the more it will naturally drift into public consciousness as time passes. And the more it changes hands, the value drops accordingly, much like a used car. So acquiring rights which have a depreciating value may discourage people from chasing rights specifically to make (rort) money... just as in the above case. Reward and protect the creators, not the folk mincing about with points of legality.

Yes, this means that any copyright will and should eventually die out. Even Mickey Mouse. And I realise this would be an unpopular concept because people woud earn less money out of copyright as the years pass.

So the only way for an individual to exercise creative rights and claim royalties would be to remain creative.

When rights are acquired (ie. sold, negotiated or surrendered instead of inherited) this would mean that the new rights holder has no rights over existing similar works, and any existing disputes are not automatically acquired with the copyright, but must be declared and also bought. If this is not done, then the dispute would become annulled. Much in the same way that 'moral rights' remain with the author.

Going back to the �Down Under/Kookaburra� case, this would mean that since Larrikin acquired the Kookaburra rights in 1990, they could not touch Down Under because it was a pre-existing work sans dispute (as far as I know). So lets assume they deliberately nicked the Kookaburra riff: Larrikin Music should not be allowed to claim ANY of that because they acquired rights after Down Under was already in existence

Again, I am really disappointed this case went this far, and had this result. I'm also embarassed this happened in my own country. I hope the hearing gets overturned in the future, though it was pretty clear from the court records that the judge was very bored with the squabbling and wanted it finished and buried as quickly as possible.


A quick rundown of the situation here:

The court records are here:

Express any displeasure to Larrikin music here (the closest thing they have to a website). The person you wish to address is Norm Lurie:

And to sign off with a quote from Larrikin Music's affiliate, Music Sales Group: "We manage and exploit the copyright of many thousands of songs..." yes yes, I'm sure you do.
  • Post a new comment


    Anonymous comments are disabled in this journal

    default userpic

    Your reply will be screened

    Your IP address will be recorded