I’m just finishing up writing a song.  It’s really great.  I’ve been recording it with a band and we are about to do the final mix.  A major label has already agreed to release it.  We’re all confident it will be a big hit.  I played it for a friend last night and he said, yeah that’s great, love it, but isn’t that chorus a bit like Down Under by Men at Work?  I just smiled and gave him a Vegemite sandwich.

Actually, I hit rewind and had another listen.  I was a bit reluctant to admit it at first, but my friend might be onto something.  I may have unconsciously referenced a bar or two of Down Under.  But I’m not worried.  I doubt Spicks and Specks knows about the song yet.  And Colin Hay and Ron Strykert, the writers of Down Under, seem like nice guys.  It’s not like they are going to sue me or anything, right?

Okay, so I didn’t write a song, I’m just making a point.  After a judge ruled that the writers of the song Down Under had illegally used a riff from the nursery rhyme Kookaburra in their 1982 hit single, Colin Hay, one of the writers, issued a statement that was understandably angry in tone and in which he makes some very good points about the ruling.  For instance:

The copyright of Kookaburra is owned and controlled by Larrikin Music Publishing, more specifically by a man named Norm Lurie. Larrikin Music Publishing is owned by a multi-national corporation called Music Sales. I only mention this as Mr Lurie is always banging on about how he’s the underdog, the little guy. Yet, he is part of a multi-national corporation just like EMI Music Publishing. It’s all about money, make no mistake.

Touché on the point about the copyright holder being a multinational, but that line about it being “all about money” cuts both ways, doesn’t it?  I mean, isn’t that at least in part why Hay is pissed off about the outcome of the case?  Because he might have to cough up a pile of cash to the copyright owner of Kookaburra?  And wouldn’t money be part of the issue if I did in fact release a hit single that was later deemed to be substantially similar to Down Under?  And wouldn’t that be fair enough?

I chose my words carefully above when I said I may have “unconsciously referenced” Down Under in my imaginary song.  That’s exactly what Hay says in his statement defending their use of the tune.  In fact, he acknowledges:

It is indeed true, that Greg Ham, (not a writer of the song) unconsciously referenced two bars of Kookaburra on the flute, during live shows after he joined the band in 1979, and it did end up in the Men At Work recording.

But goes on to note:

What’s interesting to me, is that Mr Lurie is making a claim to share in the copyright of a song, namely Down Under, which was created and existed for at least a year before Men At Work recorded it. I stand by my claim that the two appropriated bars of Kookaburra were always part of the Men At Work “arrangement”, of the already existing work and not the “composition”.

Now, that latter point is obviously a matter for legal interpretation, and unfortunately for Hay, the judge didn’t accept his side’s argument.   But on that first statement, the fact that the Kookaburra riff was “unconsciously referenced”,  well, that may or may not be a legitimate point, though it obviously has no legal standing in this case.  Nor did it in the case involving George Harrison’s song My Sweet Lord when the copyright owners of He’s So Fine alleged (and won) a case of infringement.  And you can see why the law mightn’t accept “unconscious referencing” as an excuse in such a case: apart from the fact that it is too easy to fake it, it doesn’t, it seems to me, materially alter whether a riff, tune, song, whatever, was actually appropriated.  “Unconsciously referenced” strikes me as being a legal par with , “but I didn’t know the speed limit was 60.”

Still, my question is whether Colin Hay would accept “unconscious referencing” as an excuse if someone had indeed used part of one of his songs and claimed it as their own?  I doubt it.  Nor do I think that he should.

Having said that, maybe the Kookaburra riff was “unconsciously referenced” during live shows.   But that is a bit hard to reconcile with Hay’s acknowledgement of the fact that the riff then “did end up in the Men At Work recording”.  I mean, were they still unaware at the recording stage that it “referenced” Kookaburra?   I find it a bit hard to believe, and it doesn’t sound like he is saying that they were.

The most likely thing, I reckon, is that flautist Greg Ham “quoted” it as a clever and witty way of underlining and reinforcing the Australiana vibe of the song. Quoting is an expression from jazz used when a soloist “consciously references” another song, generally during an improvisation.  It is a common device and it is generally understood to be a compliment, not a rip off.   Maybe if they’d used that line of defence and offered some sort of compensation to the Kookaburra people the whole matter could’ve been settled amicably.  Dunno.  It’s all about money, I hear.

Hay’s contention — repeated in different forms by many media outlets — that “no one noticed the reference to Kookaburra”, and the two bars they used were “unrecognisable” is purest nonsense.  I was in music retail when the single and album came out and can distinctly remember people — customers and friends — commenting on the fact that a bit of Kookaburra was in the Men At Work song.  Unrecognisable?  Give me a break.

IF I sound a bit harsh on Hay and co., I’m not trying to be.  But I just don’t buy that it took the Spicks and Specks question before anyone noticed the Kookaburra riff in Down Under and I think, as the laws currently stand, that it is fair enough that Men At Work compensate a valid copyright holder for their use of copyrighted material.

Of course, this particular case occurs in the middle of a world-wide panic amongst music labels over the matter of illegal downloading, and I wonder if the times just did not suit Hay and his co-defenders?

Now, there might be something of a witch-hunt mentality surrounding illegal downloads (though I don’t think many professional musicians think so), and there is certainly a good argument that current copyright laws are badly drawn, have become draconian and exploitative and are inhibiting creative expression, the complete opposite of what they originally designed to do, but it seems to me that even if all that were not the case, there is still a pretty good argument for compensation being paid to the Kookaburra copyright owner.

But that compensation should be fair.  I saw an article in the aftermath of the court case where Norm Lurie suggested he was seeking 40-60% of the royalties from Down Under and that strikes me as insane, even as a bargaining position.  Less than one percent would be reasonable for “his” contribution to the track.

So I feel a degree of sympathy for Colin Hay.  In part this is because I think he’s great musician — I’ve seen his solo shows a bunch of times and his first solo album, in particular, is brilliant — and in part because I think it really would be an injustice if he was forced to cough up 40-60% of the royalties from Down Under.  But in an age where musicians, quite legitimately, worry about their work being stolen in the form of illegal downloads and other sorts of unauthorised transfers, and where major labels have made a point of suing individuals over such infringements, you can hardly expect musicians themselves to be exempt from having their use of copyrighted material questioned.

UPDATE: Some interesting responses in comments, and nothing I really disagree with, or at least, can’t see the point of.  Just a few points.   The fact that someone other than the original composer owns the copyright seems a non-issue to me.  One of the benefits of copyright is being able to sell it as asset or pass it on family members for their benefit, isn’t it?  If you really wanted to limit all claims to the originator of the copyrighted material (as some seem to be suggesting) you would actually be denying that person a benefit by not allowing them to sell it/pass it on. So such a restriction is self-defeating.

There is also a point to make about the underlying reason for copyright, which I don’t think is very well understood.  It isn’t there just to protect a person’s original ideas, or rather, that is only a secondary reason for the laws.  The basic idea, the reason such laws were instituted in the first place, was to provide a wider societal benefit.  The idea was that unless you gave some protection to the creators of original ideas, such people would not bother producing original works and that therefore society itself would suffer. No new songs, no new books etc.

As this article points out (from a US perspective):

The Statute of Anne (1709) was one of the world’s first real copyright laws, and it provided protection to authors “for the Encouragement of Learning,” not because authors had a full property right in their work.

In 1841, Thomas Macaulay gave one of the world’s most famous speeches about copyright, and he explained the principle in more detail. He told his fellow members of the House of Commons, “It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.”

But why should authors be paid—was it because they had the inalienable right to control their own work in perpetuity? No. “It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright.”

Again, the goal is society-wide progress, but copyright should not last “a day longer than is necessary” to secure it.

One does not have to like this. As an author, there are many times when I don’t like this. That’s because, taking this policy to its limit, copyright law only needs to help creators earn a single penny more than the smallest amount of money they need to keep creating. That sounds like a pretty miserable existence, one in which creators might never make much of a living even as they keep a culture vibrant and entertained.

Not that Congress has any intention of doing this, though; in fact, it seems as if legislatures around the world can move copyright in only one direction, toward longer terms—and this despite the tremendous outpouring of worldwide creativity we continue to see. The process is even more bizarre when applied retroactively, since the incentive to create was already enough to produce the works being given additional protection.

Still, this is how US law works (or is supposed to work). Copyright exists for society, and only secondarily for the creator. Complaining about that is one thing; denying that it’s the point of the law is another.

What’s happened over time — and as I suggested in the post, this is where the laws have become draconian and ridiculous — is that the period in which rights are protected, and the associated conditions of use of copyrighted material, have so blown out as to nullify that original desire to benefit society as a whole.  They have turned copyrighted material into a property right to such an extent that the net effect is to stifle creativity.

This is arguably what has happened in the Men At Work case. The law is being applied in a draconian way, in a way that might stifle creativity and thus deprive society of new creative products.

But I am still left wondering if Colin Hay and other musicians would be quite so keen to have the law relaxed if it was their work that was being “unconsciously referenced”. What if someone did produce a song that took two recognisable bars from Down Under? Is that okay?

My basic point is that, in this very specific case (all the examples of classical composers and folk tunes aren’t relevant here), given that the riff from Kookaburra is obviously recognisable and that copyright does exist, then there is nothing wrong with the copyright owner being compensated. (That someone other than the composer owns the copyright is irrelevant and should be irrelevant, as I suggested above.)

However, that compensation should be commensurate with the “referenced” material’s importance to the new song. At best, the referenced riff from Kookaburra is marginal to Down Under and Norm Lurie (or EMI) doesn’t deserve much. Anything over one percent would be excessive.