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.