Hi All,
I going to be a mite controversial here, but having read the judgment, I think that the Court has got it right ... up until this present point anyway. Rather than relying on the media reports, the judgment is here to read:
http://www.austlii.edu.au/au/cases/cth/FCA/2010/29.html
The song in question is here (as if you don't know the song duh!):
http://www.youtube.com/watch?v=DNT7uZf7lew
But I think the pivotal part of the decision is from par 209 to 216 (see judgment). These relate to Counsel for Hay failing to call the flautist who "devised" the riff and are reproduced for the reader's convenience here:
The failure to call Mr Ham
Mr Lancaster emphasised the quintessential Australian nature of Down Under which he attributed at least in part to Mr Ham’s inclusion of the flute riff.
Mr Lancaster described Down Under as an affectionate celebration of, and a witty commentary on, some of the icons of Australian popular culture, with a sharp edge that takes aim at Australian gender stereotypes. He said that this is apparent in the lyrics of Down Under and that it is just as pronounced in the video released with the 1981 recording. He submitted that the same references occur musically.
Mr Ham’s affidavit contains an admission that his aim in adding the flute line was to try to inject some Australian flavour into the song. Mr Armiger agreed in the passage that I have set out at [152] above that the flute riff of Kookaburra conveys an Australian flavour by reproducing the bars from Kookaburra.
But I do not consider that the discussion of Australian flavour plays any real part in the question which I have to address. Copyright protection is not concerned with ideas of Australianness but with the form of the copyright owner’s expression.
Indeed, there may be some force in Mr Catterns’ submission that there is considerable tension between Larrikin’s emphasis on the overall Australian flavour of Down Under (which employs many Australian images apart from Kookaburra) and its claim to a percentage interest of 40% to 60% of the work. That is not a question which arises in this part of the proceedings and of course I do not express a concluded view.
What seems to me to be important in the present part of the case is the inference that flows from the failure to call Mr Ham. It is trite to say that I can infer that his evidence would not have assisted the respondents’ case. But it is also open to me to infer that Mr Ham deliberately reproduced a part of Kookaburra, an iconic Australian melody, for the purpose and with the intention of evoking an Australian flavour in the flute riff.
For present purposes it is sufficient to say that Mr Ham’s reproduction of the relevant bars of Kookaburra reinforces the finding of objective similarity. That is the real significance of the failure to call him.
In my opinion, it is appropriate to draw the inference that Mr Ham deliberately included the bars from Kookaburra in the flute line for the purpose referred to above.
However, I accept Mr Hay’s evidence that he was not aware of the appropriation of the bars of Kookaburra until about the early part of the last decade.
In other words, Hay (or at least his lawyer acting on Hay's instructions) deliberately omitted to call a vital witness (the flautist) to give evidence on whether it was ripped-off. The only inference that you can draw from that is that Ham would have given evidence that favoured the planitiff (the owners of the rights to Kookaburra) and not Hay. ie that the riff was was copied (ie plagiarised) and deliberately so without regard to the owners of the interllectual property in the melody of Kookaburra.
Take a look at the you-tube video folks. In particular, look where the flautist is depicted when he plays the riff in question at about the 50 second mark in the clip.
I wonder why?
Hay and others have derived a benefit (and a considerable one) (and a continuing one -- everytime it is played) from the addition of that riff to the piece. The owners of the rights to Kookaburra have not shared in that benefit and are entitled to do so because they have a copyright over the melody that has undoubtedly been copied into that flute riff.
I know that
both of these pieces are iconic music in Australia, but try and leave emotion out of it and look at the
cold hard facts. It is virtually certain (they only have to prove it to the balance of probabilities) that Ham deliberately ripped off the riff he played in "Downunder" from "Kookaburra". That is the only inference you can draw from his not being called by Hay to give evidence in Court and be cross-examined. Hay (and many others) have profited greatly from it because that riff is an integral part of downunder -- it is its "hook". The owners of the interllectual property in question, did not receive their cut, nor did they even receive an acknowledgment. They are entitled to their cut, not on any moral ground, but because they own interllectual property.
People buy (or retain) copyrights like this as an investment -- it is a valuable (but intangible) piece of property. If you went out and bought the rights to a piece of music as an investment, and then someone reproduced it without permission and made a motza, wouldn't you want your cut as a return on the investment?
By way of analogy. Mike Salway recently opened a thread on IIS that revolved around someone ripping off (a part) of one of his images of the "smiley-face" conjunction (it was a beaut image
) A lot people expressed disgust at that -- and rightly so.
Let's say an employee of a publishing company swiped that image of Mike's without permission, knowing it was someone-else's work and included it in a calandar with eleven other sunset/sunrise images. The publishing company publishes it world-wide and makes $1,200,000 clear profit from sales of the calendar. Would Mike be entitled to, say, $100,000 compensation from the company who published the calendar once someone, somewhere, makes the connection and say's "Hey ... that's Mike's photo!"
Let's say the company pleads in their own defence: "Well, we didn't know it was Mike's image". Does that absolve them from having to pay Mike his fair share of the profit thay made from it?
What conclusion would you draw during the court-case, (when Mike sues them) if the company refuses to call the employee in question (who swiped it) to give evidence and be cross-examined?
Alternately (to inject emotion back into the equation), how would you feel if a session musician employed by a U.S based rock/pop band ripped-off the riff from Billy Thorpe's "Some People I know ...", or Daddy Cool's "Eagle Rock" and used it puporting it to be their own and included it in a song that went to No 1 in UK, US and Australia (as "Downunder" did). Would Thorpe's estate, or Ross Wilson be entitled to their cut of the royalties?
Case for the prosecution, your worship.
I know the song is iconic, I know there is emotional attachment to it (I feel that way too) but leave that aside and look at cold, hard facts. Yes, this is all about money: Hay made a heap of it (and continues to do so) out of the song. The owners to the rights for "Kookaburra" want their cut -- that's all. They own a piece of property that is an investment they just want their dividend.
Best,
Les D