In addition to Chris Lloyd’s contribution below, several other bloggers have already published posts on last week’s Federal Court decision (Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited) about copyright breach in Men at Work’s iconic pop anthem “Down Under”. A single judge Jacobson J held that “Down Under” infringed the copyright in the 1930s children’s song “Kookaburra (sits in the old gum tree)” by reproducing a ‘substantial part‘ of the latter in a two bar flute riff of Down Under. At least on a naive quantitative approach almost anything would be a ‘substantial part’ of Kookaburra because it’s only four bars long!
Skepticlawyer has posted on the case, as have Lauredhel and Robert Merkel. However, no-one has so far attempted any serious analysis of the legal issues the case raises. I was hoping the ozblogosphere’s resident IP law expert Kim Weatherall might have posted about last week’s judgment, but alas she seems to be MIA; no posts at her site since late November. Consequently I thought I’d venture this post. I’m by no means an IP law expert but I have a sufficient working grasp of it to at least outline for discussion some important legal and wider issues the case raises.
The key issues in the case were defined by Jacobson J in the following terms:
1 the 1981 recording of “Down Under”, and an earlier version described as the 1979 recording, as well as two Qantas advertisements which incorporate the flute riff of Down Under, involved the reproduction in a material form of a substantial part of “Kookaburra”.
His Honour found that the Qantas ads didn’t reproduce a substantial part of Kookaburra, because they only included one of the two bars of music in question, whereas “Down Under” itself included two bars and therefore did reproduce a substantial part.
Jacobson J preferred the evidence of Larrikin’s expert musicologist Dr Andrew Ford to that of EMI/Men at Work’s expert John Armiger. The argument between the experts is summarised as follows:
The second issue is whether, if I am of the view that there is the requisite similarity, the bars of Kookaburra which are reproduced are a substantial part of that work. That question is to be determined by a quantitative and qualitative consideration of the bars which are reproduced.
Needless to say, the musical context in which the bars of Kookaburra are reproduced in Down Under is quite different from the round which was written by Miss Sinclair nearly 50 years earlier.
The expert musicologist called by Larrikin, Dr Andrew Ford, agrees that the harmony of Down Under is different from Kookaburra. He agrees that there are certain other differences, but in his opinion, the melody of the flute riff when it plays the bars from Kookaburra is the same as the melody of the first two bars of Miss Sinclairs round, although it has a different feel.
Dr Ford considers the first two bars of Kookaburra to be the signature of that work. The respondents expert witness, Mr John Armiger, agrees with that proposition, but it is a matter of debate between the parties as to whether this characteristic is sufficient to make those bars a substantial part of the work.
The debate between the expert witnesses involves a discussion of the concept of a musical hook. Mr Ford observes that in popular music, a hook is a short instrumental figure which (with luck) proves to be instantly memorable and recognisable every time the song is played.
Dr Fords evidence proceeds on the basis that the flute riff is the hook of Down Under, although he recognises that it contains certain other musical elements apart from the relevant bars of Kookaburra.
The effect of Dr Fords evidence is that the hook of Down Under is an integrated musical statement in which an essential element is the incorporation of the two bars of Kookaburra.
By contrast, Mr Armiger is of the view that the combination of the other musical elements with the bars of Kookaburra creates a new musical phrase which distinguishes it from Kookaburra.
The issue of whether there is a sufficient degree of objective similarity between the works turns very much on the answer to that question. Inextricably involved in the question is a consideration of the similarity and difference between the musical elements of the two works including melody, key and tempo.
Ultimately the question is one of fact. It is to be determined by the eye and the ear with the assistance of expert evidence …
As I said, Jacobson J ultimately went with the Larrikin expert’s view, both as to the requisite degree of similarity (thus amounting to reproduction) and as to its substantiality. Note that the part reproduced only has to be a substantial part of the work whose copyright is allegedly infringed; it doesn’t need to be a substantial part of the infringing work. The flute riff probably isn’t a substantial part of Down Under, but on just about any basis those two bars would have to be a substantial part of a four bar composition like Kookaburra.
Most people who listen to the two works in question, with the noteworthy exception of Jacobson J, seem to regard it as extremely dubious at least on ordinary listening whether they are sufficiently similar for Down Under to amount to a reproduction of Kookaburra. Try it for yourself. Listen to the YouTube at right above (hat-tip Lauredhel). As Chris Lloyd observed, the Down Under flute riff is in a minor key and ska rhythm and therefore sounds radically different from Kookaburra, to such an extent that almost no-one picked the connection until the ABC TV Spicks and Specks episode that prompted Larrikin’s opportunistic litigation.
The problem with Jacobson’s approach, or at least his actual conclusion, is one of fundamental general rather than narrow legal principle. Jacobson J’s approach potentially frustrates the progress of human intellectual and cultural progress to a radical extent. Just about all intellectual and cultural works are in a very real sense unoriginal or at least highly derivative: they reference, build on and “stand on the shoulders” of literary, musical or artistic works that preceded them. Taking an excessively wide and prescriptive approach to copyright, as Jacobson J did, will stifle the growth of human thought itself. However, unless some defective application of legal principle can be identified in Jacobson J’s approach, on which I’m not sufficiently expert to comment meaningfully, it may well be that this case highlights a need for significant amendment of Australian copyright law. Perhaps a germ of an appeal ground might be found in the fact that Jacobson J seems to have regarded the change from major to minor key and the completely different rhythm of the Down Under riff as tiny and almost irrelevant changes analogous to “the mere adaptation of an air by transferring it from one instrument to another”. Could that be an erroneous application of legal principle? Or might an appeal court take a more global view and see Jacobson J’s conclusion, that such a radically different-sounding passage was a mere reproduction or copying rather than “a new musical phrase which distinguishes it from Kookaburra” and which inevitably references or draws upon aspects of earlier works in an entirely appropriate manner, as a perverse or manifestly unreasonable finding and therefore an error of law?
Ironically, however, since the judgment some bloggers have argued that Kookaburra itself is just about indistinguishable from a very old Welsh folk song from which its composer stole the melody holus bolus. Lauredhel’s post is an example of that line of argument. Again try it for yourself. Listen to the second YouTube at right.
A work is not entitled to copyright protection at all unless its “expression of ideas” is original. Halsbury’s Laws of Australia summarises the legal position:
A work must be original to attract copyright protection. … Copyright law is not concerned with originality of ideas which means it is not necessary for the work to be the expression of original or inventive thought. The originality which is required relates to the expression of the thought, so the use of a trivial or hackneyed theme or subject does not preclude protection. There is no need for a work to show any aesthetic quality or merit and simplicity does not mean that a work is incapable of protection. A work is original if it emanates from the author and is not merely copied from another work. The contribution of an author is directly connected to the notion of originality. It is sufficient that the work is the result of the application of knowledge, judgment, skill or labour by the author and is not simply copied. …
If two authors independently produce similar works, the similarity does not prevent copyright subsisting in both works. A work which is based on an earlier work is not denied copyright protection by that fact alone. Thus, a drawing based on another drawing and translations from one language to another may be sufficiently original to be independently protected. There is, however, no copyright in a slavish copy of a work.
Unfortunately, it appears that Lauredhel may have misread the Wikipedia article from which she seems to have drawn her conclusion that Kookaburra’s composer stole the melody from an old Welsh folk song. Here’s what it said:
“Kookaburra” is sung to the same tune as the Welsh folk song “Wele ti’n eistedd aderyn du?” or “Dacw di yn eistedd, y ‘deryn du” (Rough English translation “See you there, that black bird sitting?”). This traditional Welsh nonsense poem is much older than the song “Kookaburra”, but, similar to a number of Welsh folk songs that originated from Welsh poems that were later sung to other, more well-known tunes – the most famous of these being “Ble Mae Daniel?” (“Where is Daniel?”) sung to the tune of “London’s Burning” – the poem was adapted to fit the tune “Kookaburra” in the 1960s by the Urdd Gobaith Cymru (The Welsh League of Youth) movement, as the syllables in the Welsh poem are almost identical in pattern to those in “Kookaburra”.
In other words, it appears that the melody to the current version of the Welsh folk song was stolen from Kookaburra rather than the other way round!
Accordingly, it may well be that an amendment to the Copyright Act 1968 is required if Jacobson J’s judgment survives appeal. The situation is not unlike that which arose during the litigation between the Nine and Ten Networks over whether the satirical use of excerpts from Nine programmes in the Ten series “The Panel” amounted to an unauthorised use of a substantial part of Nine’s copyright television broadcasts. The Full Federal Court held that The Panel had breached Nine’s copyright and, although the High Court later mitigated the most serious aspects of that conclusion on appeal, Parliament had in the meantime moved to amend the Act by including an additional defence to copyright breach of fair dealing for purpose of parody or satire (s41A). The Act had previously contained defences of fair comment for purposes of research or study, criticism or review, reporting of news, and legal advice (sections 40-43), but the satirical use of the programme material by Rob Sitch and his crew at The Panel didn’t fall under any of those descriptions so the government concluded that it was in the public interest (striking an appropriate balance between the interests of rights holders and the public interest in freedom of expression and intellectual and artistic progress) to create an additional category of fair dealing defence.
I suggest the same may be the case here. As with the situation of The Panel, Men at Work’s use of the Kookaburra passage probably can’t be classified as research or study, criticism or review etc. Nor is it really satire or parody. The referencing of Kookaburra and numerous other aspects of Australian culture is whimsical, wry and affectionate rather than satirical. It would be ironic if reproduction of a substantial part of copyright material for nasty satirical or critical purposes was largely immune from action for breach of copyright while more positive, affectionate referencing left artists open to huge awards of damages by opportunistic copyright carpetbaggers like Larrikin Music. Perhaps Attorney-General Robert McClelland should consider adding an additional generalised fair dealing defence of “comment” (whether serious, satirical, humorous, whimsical or whatever), and leave it to the courts to develop detailed criteria as to when comment is and is not fair. I should note that this suggestion is itself unoriginal. I have shamelessly appropriated it from a 1997 scholarly journal article by Anna Thuc-Anh Tran whose focus is the copyright ramifications of the ubiquitous digital sampling techniques used in contemporary music genres like rap and hip hop. Similar considerations apply to visual art forms like collage and various types of pop art (e.g. Andy Warhol – could Campbells have sued for his use of soup cans?). I wonder whether I should jump in the fried-out kombi and hightail it out of town with the Parish fortune secreted under the back seat before Anna instructs solicitors?