Men at work

[ngcles]

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

[Octane (Humayun)]

Les,

Thank you for arguing the other side.

People put emotion into something which is pretty much academic.

I'd like to point you to Coldplay (Coldplagiarism)'s rip off of Joe Satriani's work.

H

[Terry B]

Interesting post Les.
Your comment about Mike's image is good but the situation is a little bit different.
you said
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!"

A closer example would be that Mike entered the image in a competition (as the kookaburra song was). He didn't read the fine print and realise that this gave the rights to the image to the competition owners.
The same thing occurs as you state and someone rips off the image for a calender. Mike sees the image and feels he should get something for it. He contacts the company and they tell him that he doesn't have any rights to it. The competition company then sue and get the $100 000. Mike gets nothing.
I don't see how someone should be able to sell a copyright as has happened with kookaburra. The composer or their estate gets nothing each time it is played including every time it is played at the local public school or preschool. The precedent means that almost no songs written in the last 80 years can be played without paying royalties. You could say that the royalties come with the sheet music but simple tunes like kookaburra can be easily learnt without ever buying a sheet or illegally copying one.
It's all a bit silly really.

[ngcles]

Hi All,

Originally Posted by Octane

Les,

Thank you for arguing the other side.

People put emotion into something which is pretty much academic.

I'd like to point you to Coldplay (Coldplagiarism)'s rip off of Joe Satriani's work.

H

Yep and here's another example I know will be close to your heart: Listen to the bass-riff in the last 90 seconds-odd Pink Floyd's track: Pigs (three different ones) from "Animals" (1977) and compare to the chorus melody of the smash hit single (not that I'm endorsing it in any way at all ...) "I was made for lovin' you baby" by Kiss (1979).

there is a strange similarity there ...

Originally Posted by Terry B

I don't see how someone should be able to sell a copyright as has happened with kookaburra. The composer or their estate gets nothing each time it is played including every time it is played at the local public school or preschool. The precedent means that almost no songs written in the last 80 years can be played without paying royalties. You could say that the royalties come with the sheet music but simple tunes like kookaburra can be easily learnt without ever buying a sheet or illegally copying one.
It's all a bit silly really.

Well, we could argue about the morals of the situation until the cows come home, but that's the law of the land. It's there to protect things that are copyrighted for good reason. Why not be able to sell? By selling your copyright, in effect, you are getting your future royalties up-front. The buyer takes the risk that it may not perform as well as hoped.

I can't see it as different from amy other type of property. Until not long before his death, Michael Jackson owned the rights to nearly all the Beatles work. He bought them as an investment no doubt to collect royalties and hoped they'd appreciate as time went on when he could sell them at a higher price.

How is this different from buying an "investment property" or shares??

What we all have to remember in the end is this: While Hays and Ham are both named as respondents in this action and centrally involved in the evidence, the third respondent is EMI who owns the rights to and published "Downunder". That is who Larrakin is really after I'd guess because EMI's got lots nad lots of money. I'm guessing Ham isn't sitting on millions (he's currently a guitar teacher at a high-school according to Wiki) (you can't get blood out of a stone). And I'm sure Hay isn't mega-rich nowadays either.

And the money Hay earned from the song? One has to ask "Where can it be now?" I guess!

Well, in truth, EMI made the most money from it (much, much more than Hay or the other band-members) and Larrakin probably want their share from EMI -- and take a bit from Hay on the way if they can.

However, I don't like their chances of recovering a mega-payout. Note the last few sentences from the Judgment:

The question of what percentage of the income of Down Under ought to be paid to Larrikin has not been determined in this part of the proceeding. Whilst the issues which I have determined in this part of the case have a bearing on the question of what is the appropriate percentage, the ultimate determination of that question will depend upon the application of legal principles and factual considerations that have not been dealt with in this part of the case.
The respondents submit that Larrikin’s claim to be entitled to 40-60% of the income grossly over-reaches a proper allocation of any such entitlement. That is a matter to be determined in the final part of this proceeding.

They've asked from 40-60%. Reading between the lines, 2-5% (if that) is more likely -- but I guess we'll see. Substantial but not likely to send Hay or EMI broke.

But make no mistake, win, lose or draw, all the lawyers involved will make a lot of money from this case.

Lawyers always win ...


Best,

Les D

[Terry B]

Originally Posted by ngcles

Hi All,


But make no mistake, win, lose or draw, all the lawyers involved will make a lot of money from this case.

Lawyers always win ...


Best,

Les D

So true.

[Jeffkop (Jeff)]

Originally Posted by ngcles

Hi All,

and its claim to a percentage interest of 40% to 60% of the work.

Now that ... if I am understanding it correctly is quite laughable, that these money mongers can think that the content of that song that they are claiming is theirs is worth THAT much ... Oh stop it, I think my bladder has just moved a bit too close to my eyes ... GET REAL ... and even from a marketing perspective if anyone thinks that the accumulated incomes generated from that song are because 40% to 60% of the buyers loved 9 notes of music in that entire work and so went out and bought it ... or that all those sales were influenced because of hearing melody in length the equivalent of a radio station "guess this song" and were so taken by it that they bought the record ... then they are on some serious drug.

Come on really, what made that song so popular ???? Hmmmm ... Why didnt everyone just go out and get their copy of "Kookaburra sits in an old gum tree" ... not waste their time and money on this new song that you can hear a similar sound for a blink ... and I finish by saying ... I bet you can find Land Down Under in many music collections and so then it follows that in 40% to 60% of these collections there will also be a copy of Kookaburra .... I dont think so.

These fleas on the dogs back are a disgrace in my opinion and even if there is a case to answer ... then if they were not just a pack of easy money mongers ... and if they were totally honest about how much "their" piece of the song contributed to the entire songs success then they would soon realise that this claim is a total waste of effort, time and more importantly from their perspectives ... money.

[Octane (Humayun)]

Les,

I just had a listen -- the similarities are there but I think it's different enough. The Floyd composition sounds a lot more fluid whereas the KISS composition is the same 5 notes played in a repeating pattern.

I do get it, though, the rise-and-fall pattern is there.

As an aside, if I'm not mistaken, Gilmour wrote and played the bass for this track. That guitar solo... I could listen to it all day.

H

[norm]

Thanks Les

BTW: if you look at the clip, the flautist at one stage is sitting on an old gum tree ....food for thought.....

Was it subliminal ? Me thinks not. PS I'm not defending Larrikin Records and with a song as iconic as Downunder, why can't they just let sleeping dogs lie.

Norm

[DavidU (Dave)]

To respond to previous posts....
EMI are in deep doo doo (balance sheet).
re Mikes photo.... It would be parallel if they used a 5% crop of the red channel of Mikes photo and inserted it into the bottom right hand corner of the calendar.
A person should remember there is a big difference between the "body" of a songs make up and the lyrics compared to the off the cuff adlibbing by other instruments to add ear candy to a finished tune. Colin wrote the tune before Men at Work existed, all that was added was the add lib sections.
In the end it will be found that the Kookaburra tune was based on an old middle ages melody.
Also I would hate to think of how many small sections of Led Zepplin songs are in THE MAIN body of songs structures.

[Jen]

Originally Posted by Outbackmanyep

I'd rather listen to Down Under than Kookaburra!

me too great song now where did i put that vegemite sandwich

[AstralTraveller (David)]

Regarding the video and its supposed relevance to this case, if you look you will notice that the flautist is sitting in a mangrove, not a gum tree (notice the water under the tree?). One of the producers of the video wrote to the SMH recently and explained what happened. I forget the details but basically he pointed out that it was cheap (we can see that) production, part of which was shot on the sand dunes at ??Kurnell??. Originally he was supposed to walk along a stretch of sand playing the flute but the tide came in. So they hung a stuffed koala from a tree and he sat there acting silly.

I know that could be a load of b..... but it does fit with the footage. And if they had wanted to reference the 'old gum tree' surely they could have found one for him to sit in.

[Outbackmanyep]

Down Under became more famous when Australia II used it for their "battle song" when going out to race in the 1983 America's Cup.
The Boxing Kangaroo flag was born as well.........

Top song, awesome flag and the win was the best sporting achievement this country has ever had! if you don't agree then maybe you should research the 1983 America's Cup!

[norm]

the flautist is sitting in a mangrove, not a gum tree

Admittedly I came to that conclusion as well before submitting the post, but thought, what the hell.......

I guess it still proves that the intent was there and some acknowledgement of the original song......

Anyways.......

Norm

[DavidU (Dave)]

The boy's are ordered to pay up.
http://au.news.yahoo.com/a/-/austral...-at-work-case/

[renormalised (Carl)]

Originally Posted by DavidU

The boy's are ordered to pay up.
http://au.news.yahoo.com/a/-/austral...-at-work-case/

This is going to open the floodgates...

[lacad01 (Adam)]

whaaat ??? That is just utter nonsense

[mithrandir (Andrew)]

I guess it's time to copyright every possible 12 bar riff, and watch the money roll in.

[acropolite (Phil)]

The boy's are ordered to pay up.

Fortunately the Judge had enough common sense to only award 5% not the 60% the plaintiff was seeking. It should never have happened, as Andrew points out what's next, copyright on every riff.

[GrahamL]

Who pays whos costs ?.. This is a big dollar court case with little there for the winner when you read 5 % from 2002.

[ngcles]

Hi All,

Originally Posted by ngcles

They've asked from 40-60%. Reading between the lines, 2-5% (if that) is more likely -- but I guess we'll see. Substantial but not likely to send Hay or EMI broke.

But make no mistake, win, lose or draw, all the lawyers involved will make a lot of money from this case.

Lawyers always win ...


Best,

Les D

So who's the prophet/seer ?

And yes, the costs for both teams of lawyers (probably in the region of $1 million total -- if not more) will have to be borne by EMI & Hay undoubtedly exceeding the quantum of the royalties deemed by the court to be payable several times over. 5% of 2002-2010 will probably be only in the order of a couple of hundred thousand dollars max -- probably much less than that in fact.

Hay/EMI might well have been able to negotiate a settlement out of court for 10-15% easily halving their total bill and kept the whole issue out of the public gaze.

As I said, the lawyers always win.


Best,

Les D