Crazy Copyright Case
Over on ChoralNet, they have a persistent running gripe about copyright legislation and the heavy-handedness with which big businesses in the music industry enforce it. I mostly try not to get too worked up about these things – it’s part of the landscape we work in and I have other more interesting uses for my emotional energy – though I do appreciate having voices of reason on the case lobbying for balance.
But there was a news story last week that has me mentally frothing at the mouth (if such a thing is possible). The music publisher Larrikin, who bought the copyright to ‘Kookaburra Sits in the Old Gum Tree’ in 1990, is apparently suing Men At Work for plagiarism, claiming that the flute riff in the 1981 song ‘Down Under’ is stolen from the girl guide tune.
First – though this is not what really drives me potty – I think this case lends support to the argument of those who claim that copyright law is more about the interests of the companies that buy intellectual property as a form of capital than protecting the work of creative artists. The writer of the song, Marion Sinclair, isn’t going to benefit if Larrikin win this case. But that’s an aside.
What does wind me up is the contention that this is plagiarism. I beg your pardon? Have you heard the two tunes? They’re a little bit alike, yes - but it's only one little snippet, and comes in different positions (in the middle of Kookaburra and the end of the flute riff in Down Under), and in different tonal contexts. It's not precisely obvious. Indeed, it took until 2007 before anyone said, ‘Ha ha have you noticed that Down Under sounds a little bit like Kookaburra Sits in the Old Gum Tree? Ha ha ha’ (I paraphrase).
Because of course, tunes are always sharing little snippets with each other. That's what happens if you have a lot music in the world. And everyone always has fun pointing out these similarities. Here's one of my favourites:
- ‘Durch Die Wälder’ from Weber’s Der Freischütz (main tune starts just after a minute into the clip)
- Frosty the Snowman
- Theme tune from Raiders of the Lost Ark
So, will John Williams be getting a writ from Frosty’s writers now I’ve pointed it out, and will he defend on the grounds that both are stolen from the same, out-of-copyright source?
Down Under sounds a bit like Kookaburra in the same way that some vegetables look a bit like genitalia. That’s why it’s funny to point it out. (Dystopic vision now emerges of someone succeeding in copyrighting the human genome and suing a farmer in Dorset on grounds of copyright infringement for growing a carrot that looks a bit like a willy – maybe there’s a reason that supermarket veg are so standardised these days…)
Okay, so what is actually worrying in this case is that it is a music publisher bringing the suit. You’d think, being in the music business, that they might know a bit about music and maybe realise that it’s not a very musically sensible claim to make. So they’re either stupid, or so greedy they don’t mind looking stupid. I don't like either supposition - I know the world is full greedy and stupid people, but I like to think that the music industry is generally full of intelligent and fair people like my friends.
Mind you, it would make a great case study for an undergraduate music analysis course – there’s nothing like real-life questions to get students to engage with theory.