Great post.

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.

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.

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).

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!!!

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…

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.

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.

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.

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