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Copyright case - songwriters to lose $MILLIONS!

An Australian court has recently decided that a song that is almost a national anthem rips off another song written 49 years previously. And someone is going to have to pay...


Go on - sing a few bars of the Australian national anthem. No, not Waltzing Matilda, that other one.

No, not Advance Australia Fair. That's the official national anthem, chosen by the Australian people in 1977.

Without doubt however, Australia's real national anthem, the one that the rest of the world knows, is Down Under by the band Men At Work.

Down Under was released as long ago as 1983, but it has only recently emerged that it is a rip-off of another song, Kookaburra Sits In The Old Gum Tree, written by Marion Sinclair in 1934.

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Thanks to an earlier decision in court, the copyright in Kookaburra is now owned by Larrikin Music. Sinclair died in 1988.

It does seem a bit odd that Down Under was released forty-nine years after Kookaburra was written and it was twenty-six years before Larrikin Music noticed that there is something of a similarity between the two songs!

You want to hear it, so here goes. Firstly Down Under (listen for the flute phrase around the 53 second mark)...

And now Kookaburra...

I'll leave it to you to judge a) whether there is indeed a similarity, and b) whether Down Under is a complete rip off, or whether it merely references a tiny piece of pre-existing Aussie culture.

But since the court has decided that the copyright in Kookaburra has been infringed, then legally it has been infringed.

And that means the infringer has to pay.

The amount that will have to be paid has yet to be determined, but Larrikin Music is, apparently, expecting 40-60% of the earnings of Down Under.

Now that is a hell of a lot of money, potentially running into millions of Aussie dollars.

To be fair, the writers of Down Under, who kicked off the process of generating those millions of dollars, have given the world a lot of pleasure. They have generated business for many, many people, and they are entitled to their share of the rewards.

But surely by now most of their money will have been spent? How are the writers going to be able to pay back the 40-60% Larrikin Music expects?

But there's a further problem that affects any songwriter...

Now that it has been upheld in court that such an infinitesimally tiny fragment of a melody constitutes copyright infringement, you can be sure that anyone in the future who makes any money from a song will get their arse sued off.

'Arse' is UK English for 'Ass', by the way.

And what about the ongoing development of automated software that scans media of all kinds for infringements? That little musical phrase you put in the middle eight of your song that features on your MySpace page will be found to exist in someone else's earlier work. You'll get sued, the writer of the pre-existing work is probably dead, their publishers rake in the profit and the lawyers celebrate with another bottle of vintage champagne.

If you support the idea that creativity should be rewarded, then probably you will feel that Marion Sinclair does deserve a share of the proceeds of Down Under.

Well she won't get any because she is dead. But since copyright extends beyond death, then while she was alive she had an asset that she could sell, which Larrikin Music now owns.

But surely there needs to be a sense of proportion. 40-60% is not proportionate. Down Under would have been a successful song with a different flute melody.

I would put a just reward at around 5% or thereabouts. And if I were a judge I would cancel it anyway because of the length of time it took for anyone to notice.

How do you feel about the whole issue? What percentage would be a fair settlement?

Discussion below...

By David Mellor Friday February 5, 2010