# Is this the world's most ridiculous copyright lawsuit? **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [July 31, 2009, 7:58am UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854 "2009-07-31T07:58:55Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Markxxx](https://avatars.discourse-cdn.com/v4/letter/m/5daacb/32.png) [@Markxxx](https://boards.straightdope.com/u/Markxxx)\ **Post date:** [February 4, 2010, 11:48pm UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/81 "2010-02-04T23:48:45Z")
We used to sing the song “Kookaburra” all the time in grade school. Of course our first grade teacher also made us sing “Marching to Pretoria,” while we marched around the block our school was located on. We sang all sorts of old songs. I guess they don’t do that anymore. We used to sing all sorts of, for lack of a better word, folks songs. There were Mexican songs, and Eskimo songs, and Swedish songs, German songs were especially popular, and all sorts of songs. As for the lawsuit, the object in these suits isn’t to win, it’s to settle out of court for some money. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [February 5, 2010, 12:00am UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/82 "2010-02-05T00:00:27Z")
> [@Waenara](#): > > HOWEVER:there’s no way in hell I personally would agree that it’s worth 60% of the total royalties. That’s just ridiculous. I’ve only heard this from the claimant. I don’t know much if anything about this area, but he may well be just shooting his mouth off, or trying to talk the game up. ---
**Author:** ![Taomist](https://avatars.discourse-cdn.com/v4/letter/t/53a042/32.png) [@Taomist](https://boards.straightdope.com/u/Taomist)\ **Post date:** [February 5, 2010, 12:18am UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/83 "2010-02-05T00:18:54Z")
Count me among those \ that knew the kookaberra song as a round when growing up, and love Men at Work well, yet never connected the two. By the way, ^_()_&& Vanilla Ice in the $^\*(\_ for ruining “Pressure” for me. I bet HE never paid a royalty, either. ---
**Author:** ![Askance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/askance/32/8281_2.png) [@Askance](https://boards.straightdope.com/u/Askance)\ **Post date:** [February 5, 2010, 12:49am UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/84 "2010-02-05T00:49:26Z")
> [@Rhythmdvl](#): > > Does anyone know how the percentage is calculated? Where the burden is? It could be that there are legal provisions set up that de-link the compensation from value-contribution to the work as a disincentive to other transgressions. [Opinion piece](http://www.smh.com.au/opinion/society-and-culture/pesky-kookaburra-drops-one-on-the-debate-over-copyright-law-20100204-ng23.html?autostart=1) on the subject: > [@](#): > > Even though there was evidence that the pitch, key, rhythm, melodic shape, harmony, musical sentences and context are different, Justice Jacobson found that there was nonetheless a reproduction of a substantial part of Kookaburra in Down Under. This is not to say that Kookaburra amounted to a substantial part of the pop song. So one would expect that the ambit claim of 60% will be laughed out of court, I will guess it’ll be under 10%. ---
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [February 5, 2010, 12:56am UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/85 "2010-02-05T00:56:19Z")
Since we had versions of the song on Page 1, I’ll throw in the French version we used to sing in school: _Kookaburra rit dans l’eucalyptus Heureux comme un roi, il rit tant et plus. Ris, Kookaburra ris Quand la vie est belle il faut qu’on rie!_ (translation: Kookabura laughs in the gum tree; Happy as a king, he laughs so much and more; Laugh, Kookaburra, laugh, when life is good one must laugh.) ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [February 5, 2010, 10:02am UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/86 "2010-02-05T10:02:24Z")
> [@Markxxx](#): > > We used to sing the song “Kookaburra” all the time in grade school. Of course our first grade teacher also made us sing “Marching to Pretoria,” while we marched around the block our school was located on. We sang both in first grade. Looking back, “Marching to Pretoria” is an odd thing for a bunch of American schoolkids to sing. Speaking of parody - Weird Al Yankovic has said that for his polka-fied medleys of popular songs, he works out what percentage of the medley each song comprises (including the links, which are his own) and gives that percentage of the standard royalty for usage. Most artists/companies go for it; if they don’t, the segment gets taken out. That way he’s not paying full use royalties for umpteen songs quoted briefly in the medley, and everyone gets a fair cut. ---
**Author:** ![tumbleddown](https://avatars.discourse-cdn.com/v4/letter/t/e9bcb4/32.png) [@tumbleddown](https://boards.straightdope.com/u/tumbleddown)\ **Post date:** [February 5, 2010, 10:40am UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/87 "2010-02-05T10:40:58Z")
The kicker here is that _Sinclair registered a copyright on a song that she didn’t compose_ and that copyright was then transferred to the moneygrubbers who brought this latter-day lawsuit. The tune of Kookaburra is the same as the Welsh folk song “Wele ti’n eistedd aderyn du?” or “Dacw ti yn eistedd, y 'deryn du” about a blackbird. Sinclair was not a composer, she was a _filker_. This is the equivalent of a 2068 lawsuit by the estate of Weird Al against someone who put out a song in 2040 that had a riff that had tonal qualities similar to “Beat It.” ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [February 5, 2010, 12:09pm UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/88 "2010-02-05T12:09:52Z")
> [@tumbleddown](#): > > The kicker here is that _Sinclair registered a copyright on a song that she didn’t compose_ and that copyright was then transferred to the moneygrubbers who brought this latter-day lawsuit. The tune of Kookaburra is the same as the Welsh folk song “Wele ti’n eistedd aderyn du?” or “Dacw ti yn eistedd, y 'deryn du” about a blackbird. Sinclair was not a composer, she was a _filker_. If the tune predates the copyright, I would have thought that would have been a strong legal argument for free and fair use of the tune (since the MaW song didn’t reference the words). It’s not like you can copyright the tune to “Greensleeves”, even if you make up new words (AFAIK). Either the Welsh folk song isn’t as old as the Australian version, the defense failed to hire a decent forensic musicologist (yes, they exist) or Australian law is weird. ---
**Author:** ![Eats\_Crayons](https://avatars.discourse-cdn.com/v4/letter/e/278dde/32.png) [@Eats\_Crayons](https://boards.straightdope.com/u/Eats_Crayons)\ **Post date:** [February 5, 2010, 12:46pm UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/89 "2010-02-05T12:46:48Z")
> [@Negative\_Lite](#): > > Isn’t there a parody defense to copyright infringement under Australian law? It sure seems to me like the flute riff was lampooning the kookaburra song, the whole song is a satirical romp through the cliches of Australia. No, the U.K., Australia, and Canada do not have a parody defense to copyright infringement in the same way the U.S. does. My info is about 10 years out of date, but I don’t recall there being any amendments for parody provisions. ---
**Author:** ![Peter\_Morris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/peter_morris/32/359_2.png) [@Peter\_Morris](https://boards.straightdope.com/u/Peter_Morris)\ **Post date:** [February 5, 2010, 3:47pm UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/90 "2010-02-05T15:47:10Z")
> [@tumbleddown](#): > > The kicker here is that _Sinclair registered a copyright on a song that she didn’t compose_ and that copyright was then transferred to the moneygrubbers who brought this latter-day lawsuit. The tune of Kookaburra is the same as the Welsh folk song “Wele ti’n eistedd aderyn du?” or “Dacw ti yn eistedd, y 'deryn du” about a blackbird. Sinclair was not a composer, she was a _filker_. I think it’s likely they don’t know that. After all, they didn’t even realize that Down Under quoted Kookaburra for years, until they had it pointed out to them. Possibly Men At Work’s lawyers don’t know it either. Perhaps you should write to them and let them know. ---
**Author:** ![lissener](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lissener/32/6139_2.png) [@lissener](https://boards.straightdope.com/u/lissener)\ **Post date:** [February 5, 2010, 4:51pm UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/91 "2010-02-05T16:51:56Z")
The first time I ever heard “Down Under” I recognized the quote from “Kookaburra” as a reference to what I thought was a traditional Australian song. There’s no question that the quote was intentional. If Australian copyright law demands royalties, the law is absurd, but it’s the law. It should be changed before this kind of thing happens again. But meanwhile, if that’s the current law, they’ll have to pay. ---
**Author:** ![LC\_Strawhouse](https://avatars.discourse-cdn.com/v4/letter/l/e19adc/32.png) [@LC\_Strawhouse](https://boards.straightdope.com/u/LC_Strawhouse)\ **Post date:** [February 6, 2010, 8:22pm UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/92 "2010-02-06T20:22:28Z")
> [@Gyrate](#): > > If the tune predates the copyright, I would have thought that would have been a strong legal argument for free and fair use of the tune (since the MaW song didn’t reference the words). > It’s not like you can copyright the tune to “Greensleeves”, even if you make up new words (AFAIK). > > Either the Welsh folk song isn’t as old as the Australian version, the defense failed to hire a decent forensic musicologist (yes, they exist) or Australian law is weird. I think it is just a rumor that Kookaburra uses a traditional Welsh tune. I think the lyrics are based on the Welsh version but not the tune. I would love it if anyone can prove me wrong, though. I was trying to find a sample of the traditional Welsh song but the MIDI files on the internet sound very different. I might have got the Welsh song title spelled wrong though. ---
**Author:** ![Robot\_Arm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/robot_arm/32/18280_2.png) [@Robot\_Arm](https://boards.straightdope.com/u/Robot_Arm)\ **Post date:** [February 6, 2010, 9:18pm UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/93 "2010-02-06T21:18:27Z")
> [@G0sp3l](#): > > I believe that can be used to get a UN resolution to bomb Australia. 🙂 We’ll save Australia; don’t wanna hurt no kangaroo. ---
**Author:** ![Bites\_When\_Provoked](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bites_when_provoked/32/18073_2.png) [@Bites\_When\_Provoked](https://boards.straightdope.com/u/Bites_When_Provoked)\ **Post date:** [February 8, 2010, 8:12am UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/94 "2010-02-08T08:12:56Z")
> [@LC\_Strawhouse](#): > > I think it is just a rumor that Kookaburra uses a traditional Welsh tune. I think the lyrics are based on the Welsh version but not the tune. Welsh _kookaburras_? Not likely… I could easily see the tune being older than the song, though. ---
**Author:** ![Turek](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/turek/32/18782_2.png) [@Turek](https://boards.straightdope.com/u/Turek)\ **Post date:** [July 6, 2010, 1:45pm UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/95 "2010-07-06T13:45:22Z")
Another update: [http://news.yahoo.com/s/ap/20100706/ap\_en\_mu/as\_australia\_men\_at\_work](http://news.yahoo.com/s/ap/20100706/ap_en_mu/as_australia_men_at_work) > [@](#): > > A judge ordered Australian band Men at Work on Tuesday to hand over a portion of the royalties from their 1980s hit “Down Under,” after previously ruling its distinctive flute riff was copied from a children’s campfire song. > [@](#): > > On Tuesday, Jacobson ordered Men at Work’s recording company, EMI Songs Australia, and “Down Under” songwriters Colin Hay and Ron Strykert, to pay 5 percent of royalties earned from the song since 2002 and from its future earnings. A statute of limitations restricted Larrikin from seeking royalties earned before 2002. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 6, 2010, 5:03pm UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/96 "2010-07-06T17:03:28Z")
> [@Sailboat](#): > > What does this imply for “sampling” as practiced ni hip-hop music? Very broadly speaking, sampling constitutes use of a work, but it is not quite settled _how much_ sampling will trigger royalty requirements. If you look at the credits on a hip-hop album, though, you’ll see dozens and dozens of names, and many of those names are the names of the composers of the sampled works. They’re getting royalties for that. > [@Martini\_Enfield](#): > > I’m not a copyright lawyer, but it’s entirely possible that there’s no “You snooze, you lose” provision in the Australian copyright legislation in regards to this issue, and that this suit is being brought by the plaintiff with the full knowledge that it will get tossed out, thus creating a legal precedent that (say) action must be taken within “a reasonable period of time” (again, say, 5-7 years) or else it’s tough biscuits. Under U.S. copyright law, there is a three-year statute of limitations, but note that the existence of a recording implies that infringement will be _ongoing_. The copyright owner can always get compensation for ongoing infringement, even if it’s too late to claim damages for infringement going back to 1981 or whenever. > [@Taomist](#): > > By the way, ^_()_&& Vanilla Ice in the $^\*(\_ for ruining “Pressure” for me. > I bet HE never paid a royalty, either. He did. He was eventually forced to list David Bowie and Freddie Mercury as co-authors, which means that Bowie and Mercury’s estate are getting royalties. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 6, 2010, 5:29pm UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/97 "2010-07-06T17:29:17Z")
Ah, so just as in U.S. law, damages for past infringement are limited by a statute of limitations and the amount of royalties is capped at 5 percent. Not ridiculous at all, I’d say. ---
**Author:** ![cosmosdan](https://avatars.discourse-cdn.com/v4/letter/c/a6a055/32.png) [@cosmosdan](https://boards.straightdope.com/u/cosmosdan)\ **Post date:** [July 6, 2010, 6:08pm UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/98 "2010-07-06T18:08:20Z")
> [@friedo](#): > > Rest assured that no human outside Australia has any idea WTF a kookaburra is, including me. I knew and had heard the song somewhere. I may be wrong but isn’t the kookaburra the sound often used in old jungle movies because of their distinctive call? Can’t remember where I heard the song but I remembered it before I looked. The worst case IMO is [John Fogerty being sued for copyright infringement](http://en.wikipedia.org/wiki/The_Old_Man_Down_the_Road)because he sounded too much like himself. Greedy bastards! John eventually won and the case set prescedent when it went to the supreme court. Whether Men at Work borrowed a riff or not I hope they prevail. Those bastards didn’t write the song and Down Under was a hit before they did. ---
**Author:** ![cosmosdan](https://avatars.discourse-cdn.com/v4/letter/c/a6a055/32.png) [@cosmosdan](https://boards.straightdope.com/u/cosmosdan)\ **Post date:** [July 6, 2010, 6:10pm UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/99 "2010-07-06T18:10:22Z")
> [@cochrane](#): > > No, I’d say the most ridiculous suit was when [Fantasy Records sued John Fogerty for plagiarizing himself](http://en.wikipedia.org/wiki/The_Old_Man_Down_The_Road). whoops, should read more of the thread before I posted. We agree! ---
**Author:** ![cosmosdan](https://avatars.discourse-cdn.com/v4/letter/c/a6a055/32.png) [@cosmosdan](https://boards.straightdope.com/u/cosmosdan)\ **Post date:** [July 6, 2010, 6:17pm UTC](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854/100 "2010-07-06T18:17:12Z")
> [@G0sp3l](#): > > I believe that can be used to get a UN resolution to bomb Australia. 🙂 from Randy Newman’s political science “Lets drop the big one and pulverize 'em” “We’ll save Australia Don’t wanna hurt no kangaroo We’ll build an All American amusement park there They got surfin’, too” [Previous page](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854.md?page=4) [Next page](https://boards.straightdope.com/t/is-this-the-worlds-most-ridiculous-copyright-lawsuit/504854.md?page=6)