Temporary victory of the copyright carpetbaggers?

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:

[whether] 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?

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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8 Responses to Temporary victory of the copyright carpetbaggers?

  1. Legal Eagle says:

    Kim is on her honeymoon (or so I believe!) Hence the MIA status…

    Nice post, Ken.

  2. James Farrell says:

    The ‘affectionate quotation’ defense sounds very sensible. The snag in this case is that, as you said, ‘almost no-one picked the connection until the ABC TV Spicks and Specks episode that prompted Larrikins opportunistic litigation.’. That applies to me, but I’m sure I subconsciously recognised it, and that — given that I sang and loved the round in Grade 2 just like every other kid in the country — it did increase the pleasure I obtained from the song.

    My own inner moral voice seems to be telling me that the real defense here is precisley that the offending part doesn’t amount to a substantial part of the infringing work. If it underlay the whole song, you could fairly cal it a rip-off.

    Wouldn’t that be a promising angle for amendment?

  3. meika says:

    Copyright born in old technology,
    Merry merry the litigation must be.
    Laugh, all the lawyers Laugh, lawyers
    undead your zombie powers be!

  4. Ken Parish says:

    James

    I suppose you could amend the Act to provide that copyright is only infringed where a substantial part of the infringing work consists of a reproduction of some of the infringed work, as opposed to the current law where infringement occurs when a substantial part of the infringed work is used (irrespective of whether it constitutes a substantial part of the infringing work).

    That would certainly remedy the Down Under/Kookaburra situation and would also no doubt make it easier for collage, and rap/hip hop digital sampling works. However the latter art forms don’t in fact usually have problems with copyright because typically they transform their copyright elements radically enough to constitute brand new works rather than mere reproductions of copyright work. Thus the question of whether a substantial part has been reproduced never arises. In my view that’s the case with Down Under as well. I think Jacobson J was simply wrong in concluding that the transformative use of kookaburra in Down Under was a mere reproduction.

    A problem with your suggestion would arise, for example, with dance mix recordings used in nightclubs. They may consist of a digitally strung-together series of substantial extracts from pop etc songs. No single song forms a substantial part of the whole dance mix, but nor is there any form of artistic or other transformation (other than some sort of fade or other effect at the transition) or any redeeming societal purpose to the usage. It’s just for entertainment and profit. Why should such a usage not attract an obligation to pay royalties? The philosophy/principle behind the various fair dealing exceptions/defences is essentially that a usage of an untransformed substantial part of a copyright work may be protected where that usage is for a purpose which the Parliament has concluded is one that adds societal value in some way, generally one which enhances or extends free speech or broadens cultural/artistic expression e.g. through facilitating/allowing research or study, criticism or review etc. Parliament concluded (rightly in my view) that satire and parody perform a valuable societal role in that sense and in my view other forms of comment that can’t comfortably be described as either satire, parody, criticism or review also play a similarly valuable societal role. Down Under’s whimsical social comment is a good example. It’s difficult to mount a reasonable case that a nightclub dance mix fulfills any such societal role, it simply use someone else’s work to make a fast buck with no significant input of creative skill or effort, although no doubt some nightclub patrons would disagree.

  5. James Farrell says:

    Thanks for the comprehensive reply, Ken.

    In response to the dance mix example, here’s my final offer: what about exempting infringements where the offending material forms a substantial part of the offending work in proportion to any original creative material contained in that work. This would require judges to exercise a lot of discretion, but so does any test that involves redeeming social value.

  6. Alphonse says:

    Is Right Said Fred’s “I’m Too Sexy” next cab off the rank?

    As with “Kookaburra”, the riff appropriated from Hendrix’ “Third Stone from the Sun” – with less transformation, at that – is a substantial part of a very melodically insubstantial work – though by no means an artistically insubstantial one such as, say, “Kookaburra”.

    Meanwhile, I think James’ brief is fit to go to the Parliamentary Counsel.

    I’d also support Ken’s “whimsical affectionate” addition to the “satirical” exemption.

    ps – maybe there was a royalty deal before “I’m Too Sexy” was released

  7. Chris Lloyd says:

    Thanks for all of this Ken. much appreciated. Here is a radical view that might generate some comment.

    So much of our musical content is owned by the race. The diatonic scale, the rhythms of Africa, the Gregorian harmonies, our genetic inheritance. I am very hostile to the very notion that artistic output is a thing which can be owned. Indeed, I am hostile to the idea that an idea can be owned. My idea is that the idea that an idea can be owned is bollocks and you can have this for free. Credit, glory and thanks to the idea creator yes. Ownership no.

    In a world where the notion of owning ideas had not taken root we might think of protecting IP in a different way as a very rare restriction of freedom when the market completely fails. Foreign investment decision are determined by a review board, not by a judge, and is based on national interest. The ACCC assess whether a certain business practice of merger is economically in the public interest. I think that IP copyright could be handle the same way by a board who make their judgment on the basis of evidence from industry and economic experts. The criterion for the judgment would be does restricting use of this (class of) IP increase or decreased total value and consumption of the class of IP? The default position would be, quite naturally, that completely free use of the IP will maximize total value of consumption. It would be up to the copyright claimants to make the case that restrictions were necessary.

  8. Ken Parish says:

    Chris

    Like my proposal, your idea isn’t original either. Numerous academic lawyers and economists, notably Laurence Lessig and Richard Posner among the lawyers, have advanced similar arguments against intellectual property (or at least for its considerable attenuation). The most recent among the economists is a 2006 book by Boldrin and Levine called Against Intellectual Monopoly. Alex Tabarrok has a thoughtful critical review of it at the prominent econoblog Marginal Revolution. Some of the comment box discussion is worth reading too. I think I largely agree with Tabarrok, although as a pragmatist of sorts I would mostly advocate shortening the duration of both patent and copyright, and widening the scope of exemptions/defences to copyright as discussed in the primary post. Tabarrok’s idea of having different patent periods for different types of invention might also have merit.

    Of course, it isn’t likely that any of this will happen any time soon, given the powerful vested interests involved and the fact that it’s all tied up in US bilateral “free trade” agreements these days, with huge economic sanctions for breach.

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