Just as a point of interest, that report comes from a New Zealand TV station and the reporter isn’t an Australian. Those among you who want to hone your Antipodean accent recognition skills can give it a close listen.
Often cases like this are brought purely to create a legal precedent where none exists.
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.
I have to say that I think the case is more than a bit of a stretch, and the inserting of a (very brief) bar or two of a song generally regarded by almost the entire planet to be a folk song (or something similar; at any rate, not covered by copyright) should not (again, IMHO) be considered a breach of copyright.
At any rate it’s going to be an interesting case- especially if it creates a copyright equivalent of “genericised trademarks”, or something along those lines …
Why did this suit suddenly appear 28 years after the fact? Because a music trivia show pointed out the similarity and I guess the current copyright holders suddenly saw dollar signs…
http://www.killyourstereo.com/news/0/4025/larrikin-music-vs-men-at-work/
No way. Firstly, the plaintiff is a professional copyright exploiter and is not going to want such a precedent. Secondly, a court isn’t going to create a time limit out of whole cloth if none exists. Thirdly, if you want to run a test case, you choose an “appropriate vehicle” ie a case which is in every other respect clear, but for the point you are trying to test. It would be beyond dumbass to choose as your test case an example where it is highly doubtful there is an infringement at all, and where you have to run an entire other case just to have the court accept you own the copyright in the work you say is being copied.
Like I said, I’m not a copyright lawyer- just throwing a possibility out there. Thanks for the clarification, though! Definitely noted for future reference.
Copyright laws in Oz surely differ from those in the US, so maybe this example doesn’t cross-index. When the folkie who wrote Babe, I’m Gonna Leave You found out, years later, that Led Zeppelin had ripped off her song, her case was flawed because she had waited too long. She got a negotiated settlement, but if she ever wants to record her own song again, she’ll need Led Zep’s permission. :smack:
Update: The courts agreed that it is copyright infringement:
http://news.yahoo.com/s/ap/20100204/ap_en_ot/as_australia_men_at_work
What does this imply for “sampling” as practiced ni hip-hop music?
Maybe that’s because it’s “He’s So Fine” that Harrison was accused of ripping off. That’s a lot easier to hear, although I accept Harrison’s statement that the mimicry was unintentional.
The kookaburra song, however - clearly deliberate.
Well, I noticed that it was an echo of the song when it came out, but then I am tone deaf and it is as much a timing thing as melody. Not that I think it is infringing, but I noticed it back when the song was popular. Maybe the judge was tone deaf too?
I did sing the song in 4th grade, usually just after we sung “Goober Peas.” It seemed like a good follow up after “Gay your life must be!”
No, the real reason is Australia’s arcane process serving laws. You actually have to physically serve someone, which means that they can avoid a suit for as long as they can avoid receiving the summons. Do you have any idea how long it can take to serve process on someone who won’t open the door? Either they’ll tell you that they’re too tired and sick and need to be left alone or they’ll tiptoe across the floor so you’ll think no one’s home. You can knock all day, but it won’t matter. And if you do somehow find your way in, they’ll only run and hide. I hear the mental health toll it takes can be pretty severe.
(note: factual accuracy not guaranteed in MPSIMS)
the quail with the green wings and the rainbow lorikeet are absolutely beautiful … and the albino kookaburra is cute in a ruffley headed sort of way =)
Rhythmdvl it took me a second there, lol. I was thinking no shit? then I laughed.
Uh… you’re supposed to license the sampled bits.
Thanks for noticing 
I often wonder if I’m being too obtuse or vague. Then I wonder how many times I’ve missed things myself.
Okay, I think it’s a little stupid considering how short the riff is and that is seems like an homage to me. But the court probably knows what it’s doing.
HOWEVER:
there’s no way in hell I personally would agree that it’s worth 60% of the total royalties. That’s just ridiculous.
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.
I don’t get the amount either. If you do it properly (i.e. license the composition before you release the song, so you don’t get sued), the mechanicals are spelled out for compulsory licenses. There is a Statutory Rate. I don’t know what it is, so let’s just say $X for songs (or portions thereof) that are five minutes or less. So if someone sells 10,000 copies of a song with a part of your tune in it, you get 10,000 x X. I’m not sure how performance royalties work out though.
I have no idea where the 60% figure comes from.
ETA: I looked it up and the current Statutory Rate is 9.1 cents for songs of 5 minutes or less. And I also read that sampling includes additional licensing fees because you are also licensing the original performance not just the composition, but I do’t thikn that applies in this particular case.
ETA: Maybe if someone is busted for copyright violation, the Statutory Rate goes out the window and you can demand whatever you want.
The 60% figure is ludicrous, though the actual figure has apparently yet to be settled upon. The judge even noted that the riff did not necessarily constitute a significant part of “Down Under”, nor was it the hook.
OTOH, it was a substantial portion of “Kookaburra”, but no shit! The riff is two bars of a seven bar song (half of which is essentially the same riff repeated twice anyway).
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.