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Thanks to a catchy hook and exotic Aussie flair, Men at Work’s 1980s song “Down Under” became an international sensation and the pride of the country. But a ruling by the Australian Federal Court today that the tune’s flute riff incorporated a copyrighted children’s song from the 1930s has the nation saying “You better run, you better take cover.”
Colin Hay, the band’s lead singer, has already admitted that its flautist used two bars of a 1930s folk song called “Kookaburra Sits in an Old Gum Tree.” The testimony was enough to lead Justice Peter Jacobson to rule that the band plagiarized, opening up the possibility that the Men at Work, Sony BMG and EMI Songs might have to fork over up to $60 million in royalties to Larrikin Music Publishing, the rights-holder of “Kookaburra.”
Observers are screaming that the decision has the potential to reshape copyright protection in the music world — and lead to more lawsuits.
“We’re talking about something which is actually not part of the tune or the lyrics of this song, it’s actually a line which is in the arrangement of the recording,” said Terry Noone from the Musicians Union of Australia to a local news outlet.
The case has a fascinating back story, which helps explain why a song created nearly 30 years ago has suddenly been put on the barbie.
A woman named Marion Sinclair wrote “Kookaburra” in 1934 for a song competition held by the Girl Guides Association of Victoria. The rules of the contest included the stipulation that “All matter entered to become the property of the Guide Association.”
“Kookaburra” went on to win the competition, and correspondence followed between Sinclair and the Guide Association. Whether or not Sinclair read the full rules of the competition and signed away the rights has been debated. She died in 1987 and bequeathed copyright in the song to the Libraries Board of South Australia, which sold the rights to Larrikin.
In defending the case, Sony and EMI questioned whether Larrikin actually held the rights to the song, or whether the song was terra nullius (belonging to no one). In a decision last July, Justice Jacobson awarded Larrikin the rights with “abundant caution,” acknowledging that the Victorian Girl Guides wasn’t a party in the case.
This one isn’t over. It’ll move to a damages phase and likely be appealed to determine what really happened 75 years ago.
In the meantime, Australia has a lot to chew upon today.
The “Down Under” decision comes on the same day that the film industry lost a landmark case against one of the nation’s biggest ISPs, iiNet, accused of authorizing customers to download pirated movies.
Australia was riveted for the eight-week trial that culminated when a judge read out loud in court a 200-page judgment that said iiNet was entitled to protection under Safe Harbor provisions and that studios were trying to place an “unreasonable burden” on ISPs to take on rights enforcement.
So Australia has shuffled one step left and one step right on the copyright front. Can’t you hear, can’t you head the thunder?
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