Wanna buy an E flat?

In 1934 an Aussie school teacher wrote a little ditty about Kookaburras that was enjoyed and sung by school kids for decades. She made pretty much no money out of it all, as it was, and is, still legal for kids to sing a song at school without paying the composer, thank the lord. In 1980, Men at Work had a huge hit whose main hook was a catchy vocal melody and some parochial references to vegemite and chunder that, for one brief summer, somehow captured the imagination not only of we happy folks Downunder, but much of the world.

The school teacher died in 1990 and a speculator paid for the estate for the rights to the song, winning by tender. There is a short flute melody in Downunder, exactly one bar of which contains the same 11 note sequence as exactly one bar in Kookaburra. This was first pointed out on a quiz show as nothing more than an interesting curio, though they were probably not the first to notice. The speculator had obviously not realised this before, because he then sued the band and was successful. The school teacher and her descendants get nothing.

How similar are the two sections of the songs? Have a listen at the 12 second mark HERE. The commonality between Kookaburra and Downunder is 11 notes in sequence, chosen from three notes from the minor scale – the fifth the minor 7th and the tonic. It is recognisably the same melody when it is pointed out. But there are important differences. Downunder has three underlying chords changes that alter the musical sense of the 11 notes – while Kookaburra stagnates in the tonic. Moreover, Downunder is in 4/4 time with a ska feel and also in minor key. Kookaburra is in 6/8 and a major key.

On the other hand, it would seem obvious that the inclusion of this musical reference to Australiana would not have been accidental, since Australiana is what the song is about. And Men at Work have admitted as much during the court case. However, nobody outside Australia would even know the Kookaburra song and precisely zero of the songs international success can be attributed to Kookaburra. Even I, who sang the song as a kid, managed to not pick up their sneaky musical reference when I heard Downunder decades later. Did anyone else notice it before Spicks and Specks brought it up?

Justice Peter Johnson may possibly be possessed of astute legal judgment, but his musical judgment is that of a tone-deaf accadacca fan. The flute riff is not an essential musical component. Rather it is a fun little musical reference that those more observant than me might notice and have a chuckle about.

We risk a future where composers will have to submit their melodies as MIDI files to an internet search engine to see if there are any matches with existing works. They will find multiple matches – I guarantee it. Because the vast majority of musical ideas are derivative, a combination of melodies and rhythms that the composer has heard before and unconsciously puts together in a slightly different package with, perhaps, a little artistic addition of his own.

If Justice Johnsons decision is used as a precedent to set standards of similarity then it will lead to every composer who writes in the key of D Minor paying a royalty to Beethoven’s family estate. Luckily though, Beethoven’s music is not copyrighted so Billy Joel was able to take the second movement of his ninth symphony Sonata Pathetique and turn it into a great song. He may not have bothered, if it had involved copyright infringement. Nor perhaps would With or Without You by U2 and about 35 other well known hits that use the standard 1-5-6-4 chord progression be commercially viable.

If the unknown slave who first played 12-bar blues had only known a lawyer his descendants would be richer than Bill Gates.  Or, more likely, 12 bar would have died completely because the bar performers of New Orleans would avoid the cost and play something else. The artististic conversation between musicians which generates musical movements would become impossible.

Which brings us to the question of where the net public benefit lies with copyright for music at all. Personally I think there is none and that their is a huge cost in the free exchange of musical ideas. And I think that this case reveals the double edged sword of music as property. Many musicians have supported the music industrys campaign to outlaw downloads of their songs. They may find themselves on the wrong side of the same property laws that they champion – when they discover the painful truth that their songs are not really so original after all.

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18 Responses to Wanna buy an E flat?

  1. NPOV says:

    I suspect you mean Ska, not scar!

    Curious, which Billy Joel song uses the scherzo from the 9th?

  2. Chris Lloyd says:

    Good point. I use automatic spelling correction. I corrected it back to “ska”. Th Billy Joel song is “This night.” In fact I got the reference work incorrect – it was the Pathetique Sonata. Which ruins the reference to D minor. Oh well…..

  3. Gummo Trotsky says:

    Re:

    The school teacher died in 1990 and a speculator paid for the estate for the rights to the song, winning by tender.

    This is NQR. The rights to the song were bought by Larrikin Music, at that time owned by Warren Fahey. For the rest of the story, see this comment from Fahey himself at LP.

  4. Chris Lloyd says:

    I was basing this on an MSM report which said that the estate flogged the rights off by tender. You can’t trust anyone these days :)

  5. Stephen Bounds says:

    I also think it’s ridiculous to claim copyright infringement rather than musical ‘inspiration’ in this case.

    However, to be fair to the judge, he actually says:

    Nevertheless, I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the “hook” of the song.

    (my emphasis)

    I may be misreading the situation, but I believe it’s still possible for the court to say, yes there was an infringement, but the amount of damages you can recoup is (say) $1.

  6. Gummo Trotsky says:

    Australian MSM journalism – everybody complains about it but nobody does anything about it!

  7. Frank says:

    Would the writer’s estate be entitled to royalties earned before the sale? How do these contracts work?

  8. Robert Merkel says:

    Chris,

    Copyright law, and precedent, don’t distinguish between “essential” and “non-essential”. For what it’s worth, I think the judge was quite right to rule this a copyright violation under the law as it stands. Yes, the law is an ass, but blame the law, not the judge.

    The further point is that the damages haven’t been settled yet. I would find it deeply satisfying if the judge awarded $1 in damages. More seriously, the points you make illustrate that the flute hook is a very insubstantial part of the song, and as such any damages should be a very insubstantial part of the royalties earned.

    On your broader point, you illustrate the difficulties with copyright rather well, though I’m unconvinced about the idea of abandoning it entirely. My modest proposal at LP had two aspects – reduce copyright terms (for everything) to 20 years, and allow unfettered creation of derivative works, with some kind of schedule for dividing up the proceeds from such works and a tribunal to sort out disputes.

  9. Gummo Trotsky says:

    On the MSM coverage – I’m a bit disgusted with all the slack subbies who headlined the story “Men at Work Ripped Off Kookaburra: Judge” etc. To quote the judgement:

    I have come to the view that the 1979 recording and the 1981 recording of Down Under infringe Larrikins copyright in Kookaburra because both of those recordings reproduce a substantial part of Kookaburra.

    I am also of the view that Larrikin is entitled to recover damages from the respondents for the infringements under the TPA or the Fair Trading Act. It seems to me that once the infringements are accepted, recovery under s 82 of the TPA and the corresponding provisions of the Fair Trading Act must follow notwithstanding the defences raised by the respondents.

    Nevertheless, I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the hook of that song…

  10. Fred says:

    What actually happened, as far as I can glean, was that Marion Sinclair filched an old Welsh folk tune, There you are sitting, black bird, for a Girl Guide competition back in the Thirties, overlaying some Aussie lyrics about kookaburras.

    Thanks to which has a recording of the old Welsh folk tune.

    Very interesting listening!!!

  11. Dave Bath says:

    OK, I see me uploading a file REAL soon generated by a perl loop using the call to the random function and the MIDI modules. Does CT’s Jacques want to co-author? Or can we just publish the algorithm and random seed?

    But if the 12-bar blues could be killed this way, then the silver lining on the cloud would be the death of doof doof.

    Mind you, the way around this is to publish new music on a scale that recognises quartertones or even finer, rather than just semitones (some traditional music uses finer-grained pitch differences).

  12. meika says:

    Copyright has become an undead unstoppable zombie monster. And once corporations are according complete rights as natural persons, except they can’t die, copyright will be here forever. Cultural evolution will stop, circa 2020.

  13. Nicolette Boaz says:

    Firstly -There are 2 bars in question , not one.- 2 sets of 11 notes- bars 2 and 4 of the flute solo- which are identical to the original.Chord changes underneath are irrelevant. How many people would flout the law if ‘paying homage’ was a legal protection….
    Secondly -composers can’t have it both ways- Either they are protected by these laws or they are not.
    I am not saying I agree with the judges heavy handed ruling- I don’t- but if a company has bought the rights – then the law is that they own them and are the ‘protectors’ of them.
    Between 5% – 10% may have been a fairer ruling.

  14. Ex-muso says:

    Very bad legal decision (regardless of whether it was the judge or the law at fault).

    I was heavily involved in music when I was younger, including arranging, orchestrating, and writing original stuff. I also own a bunch of copyrights.

    There is no way I can see this as a genuine copyright breach, at most it is a trivial passing humorous reference to an minor Aussie cultural landmark. It is no different to what thousands of composers and other creative artists have done for centuries, indeed since creative human endeavours began.

    I agree with Meika (and many others), this is little more than the stifling avaricious amoral hand of the corporatised copyright monster running amok. It needs to be seriously reined in, ASAP.

  15. Pingback: Club Troppo » Temporary victory of the copyright carpetbaggers?

  16. Tina Harris says:

    Two words come to mind from this whole affair. Mean and petty. And hardly befitting of the larrikin spirit. I shan’t ever patronise the Larrikin Label again.

  17. meika says:

    Nicolette Boaz

    So how does the tune compare to what Fred linked to?

    What actually happened, as far as I can glean, was that Marion Sinclair filched an old Welsh folk tune, There you are sitting, black bird, for a Girl Guide competition back in the Thirties, overlaying some Aussie lyrics about kookaburras.

    which has a recording of the old Welsh folk tune.

    I’ve a tin ear.

  18. Thanks Chris,

    Great post.

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