A leading Australian band in the 80s called Men at Work had a huge hit called A Land Down Under
. The company, Larrikin Music, that had purchased the rights for an old Australian folk tune called Kookaburra Sits in the Old Gum Tree
has successfully sued Men at Work because they claimed the flute melody in the song was based on the folk tune.
My understanding has always been that, to infringe copyright, the portion of a song that resembles an original tune needs to be a major element of that song's success and the level of damages proportionate to the part's importance.
Men at Work: A Land Downunder
The Kookaburra Song
Some quotes from today's Letter to the Editor today:
"As a professional musician I understand the importance of copyright (''Infringement Down Under'', February 5). But all Larrikin Music has managed to do is turn two classic Australian songs (neither of which it had any part in writing) against each other - all for the sake of monetary gain because its owners found they were sitting on a potential goldmine while watching Spicks And Specks one night. How can they honestly ask for 60 per cent of profits and keep a straight face?"
"Quotation has been a standard tool of composers and musicians for centuries. It may be the last refuge of the uninspired jazz soloist, but it can also be applied with genius, as in the Bach Goldberg variations. In the 15th century whole liturgical choral works were often fashioned around the cryptic use of contemporary songs.
Now, thanks to a few greedy individuals and an ignorant judgment, it is the preserve of the legal system..."
"... So now a short series of notes, set in a different key, can invalidate copyright. I am sure that if anyone cares to look hard enough they could find fragments of melodies that invalidate every song written in the past couple of hundred years.
Now the new owners of the song want their millions, despite not having anything to do with the creation of the song, nor any of the risk associated with trying to sell it. But that seems to be the norm for movie and music companies, doesn't it?"
"Larrikin did not write Kookaburra and acquired the rights to it well after Men At Work's hit. In short, it suffered nothing from the release of Down Under. Its gaming of intellectual property law should not be rewarded. If anything, any payments should be made to the estate of the original composer, Marion Sinclair, not faceless men with no artistry or creativity."
That's a good term ... the "gaming of intellectual property law". Not good news for song writers.