Kookaburra vs Down Under?

Subject: Kookaburra vs Down Under?
From: Highlandman
Date: 24 Jun 09 - 04:37 PM

Maybe this isn't strictly folk, but it is germane to the many threads regarding intellectual property.
article here
For those who don't feel like following the link, a publishing company is claiming that Men At Work's hit "Down Under" improperly uses material from the Girl Guides' song "Kookaburra."
puh-LEASE!
-Glenn

Subject: RE: Kookaburra vs Down Under?
From: Q (Frank Staplin)
Date: 24 Jun 09 - 08:20 PM

If they violated the copyright, condemn them to hard labor, since they pretend to be working men and not musicians (harrummpff).

"Kookaburra" by Marion Sinclair is copyright by Larrikin Music Publishing Pty Ltd., International copyright secured.
Americans wishing to use the song contact the USA office at:
The Copyright Department, Music Sales Corp., 257 Park Avenue South, New York NY 10010.

The kididdles.com website gives the lyrics, "used with permission."

Subject: RE: Kookaburra vs Down Under?
From: Q (Frank Staplin)
Date: 24 Jun 09 - 08:28 PM

Perhaps the Girl Guides should have a merit badge in "Copyright," so that they know how to respect a composer and contribute to his well-being and that of the company stalwartly guarding his rights.

Subject: RE: Kookaburra vs Down Under?
From: Rowan
Date: 24 Jun 09 - 09:24 PM

they know how to respect a composer and contribute to his well-being and that of the company stalwartly guarding his rights.

Marion Sinclair (quite definitely "she") wrote it for the Girl Guides in Oz and it received its first performance as part of her Guiding activities; circa 1932, from vague recollection, but there's a Mudcat thread that has the fine details. "Men at Work" are much more recent.

Larrikin acquired the copyright and is obliged to respond to real and apparent infringements, hence the action.

Cheers, Rowan

Subject: RE: Kookaburra vs Down Under?
From: Bob Bolton
Date: 24 Jun 09 - 11:24 PM

Hmmm...

I wonder if we will see a comment from Mudcatter Bodgie ... the founder of Larrikin (but not present owner - nor contestant in the current brouhaha).

Regard(les)s,

Bob

Subject: RE: Kookaburra vs Down Under?
From: GUEST,Dave
Date: 25 Jun 09 - 06:38 AM

All I know is that Colin Hay writes some fantastic songs and the subtleties of his melodies are well worth investigating, even more so as he plays more acoustically and paying more homage to his Scottish roots. You only have to listen to 'Freedom Calling' to understand that he truly is passionate about words and melodies.
I've taken to interspersing a couple of his solo numbers in my otherwise fairly traditional sets and have only heard positive feedback as 'Down Under' was what I grew up with.
Check out 'What would Bob do?' on YouTube to hear how he's lampooning the generation that place all too much emphasis on Dylan and take his direction on everything. Very funny, excellent catchy song that you may all enjoy.
Dave

Subject: RE: Kookaburra vs Down Under?
From: catspaw49
Date: 25 Jun 09 - 06:48 AM

I read about 50 or more of the comments following the article and they are all pretty much saying this is a load of crap and I would agree. Several are really funny! One suggests he fears the dictionary folks may sue him for using words in his comment.

Spaw

Subject: RE: Kookaburra vs Down Under?
From: Highlandman
Date: 25 Jun 09 - 08:44 AM

According to some lines of reasoning Larrikin's claim to the copyright is dodgy to begin with.
Spaw's comment is more along the lines I was thinking.
The content in question seems to be an 11-note sequence comprising 3 of the five tones in a pentatonic scale. The harmonic context of the flute riff is not even the same as the harmonic context of the original (minor vs major). Very thin.
On the other hand, the ozzie cultural connection may be stronger than I realize from where I sit. In that case, is it a violation of copyright to musically "quote" a few notes out of something?
On the whole it looks like legal eagles trying to justify their own existence (and cash in on someone else's success) at the expense of common sense and decency; another instance of bullying tactics that seem to be the growing norm in the music world. Harrumph indeed.
-Glenn

Subject: RE: Kookaburra vs Down Under?
From: meself
Date: 25 Jun 09 - 11:25 AM

Nothing to do with the copyright issue, but I found it curious that the article linked above characterizes the song Kookaburra as "dignified". Not the first term that would come to my mind ...

Subject: RE: Kookaburra vs Down Under?
From: JennieG
Date: 25 Jun 09 - 07:12 PM

My kids used to sing:

Kookaburra sings on electric wire
Tears in his eyes and his pants on fire
Ouch kookaburra ouch kookaburra
Hot your bum must be!

No, dignified isn't quite the word that comes to mind.....

Cheers
JennieG

Subject: RE: Kookaburra vs Down Under?
From: GUEST,Concerned Canberran
Date: 25 Jun 09 - 08:19 PM

See Wikipedia: "Kookaburra" is sung to the same tune as the Welsh folk song "Wele ti'n eistedd aderyn du?" (Rough English translation "See you there, that black bird sitting?"). This traditional Welsh nonsense poem is much older than the song "Kookaburra".

So there is no merit to Larrikin's claim - the tune is much older. Only the lyrics might count and they aren't even used in Down Under!!!

Subject: RE: Kookaburra vs Down Under?
From: Q (Frank Staplin)
Date: 25 Jun 09 - 11:16 PM

According to Bob Bolton, the song is copyright in Australia until 2039 (thread 90351, the previous thread); the song written for the Guides-Scouts by Marion Sinclair).

Is Larrikin the concern watching over the copyright?.

Since Marion Sinclair wrote the song in question, the lyrics must have been used in 'down under' at some time.

Kookaburra

There are several other songs with the same or similar title, trad. and several named composers (allmusic.com). About 150 occurrences are listed. Marion Sinclair is listed for the Guides-Scouts song.

Subject: RE: Kookaburra vs Down Under?
From: Rowan
Date: 25 Jun 09 - 11:36 PM

As has been alluded to in this thread, and mentioned in the linked threads, numerous parodies have arisen from Marion's song which, in Oz, are usually sung as rounds: I gather the sequence of verses from US sources are sung sequentially rather than just the original (or "first" verse) sung as a round.

In yesterday's Sydney Morning Herald there was some comment that Marion had donated the rights to an institution in South Australia, which had then transferred them to Larrikin but I don't recall the fine details.

The gist of my earlier post was paraphrasing my recollection of Warren Fahey's (Bodgie, for 'catters) public comments on the matter.

Cheers, Rowan

Subject: RE: Kookaburra vs Down Under?
From: catspaw49
Date: 26 Jun 09 - 08:28 AM

I think I'll get a copyright on various types of farts and then hire a team of lawyers to assure I get my percentage as well as my legal heirs for generations to come.

The entire world needs to look seriously at the copyright laws in their country.


Spaw

Subject: RE: Kookaburra vs Down Under?
From: Highlandman
Date: 01 Jul 09 - 05:11 PM

Exactly, Spaw.
The sad thing is that there are real injustices being done to songwriters and composers which are never addressed, and yet this kind of s***t gets into the courts.
-G

Subject: RE: Kookaburra vs Down Under?
From: GUEST,Gerry
Date: 30 Jul 09 - 01:30 AM

The case works its way through the courts.
http://www.abc.net.au/news/stories/2009/07/30/2640727.htm?section=justin
Executive summary; the Federal Court has ruled that Larrikin owns the rights to Kookaburra.

Subject: RE: Kookaburra vs Down Under?
From: bodgie
Date: 30 Jul 09 - 02:57 AM

I have been under siege from media people desperate to get comments on the Kookaburra case both from me as founder of Larrikin Music and as a music historian. Firstly, I sold Larrikin Music way back in 1988 so I could pour the money into the record label of the same name (ie peed it up against the wall). My take on the court case is that it gets down to two rather stubborn music industry companies (Oh, I am so grateful to have escaped that side of the industry!) - Music Sales, appear to legitimately 'own' the song (not sure how much they paid SA Library but bet it wasn't very much), and EMI Music (representing Men at Work) are fighting because, if the claim is upheld, they will have to fork out a hell of a lot of retrospective royalties. As a music historian I can see how the average Australian has seen this ditty as being in the public domain (even if it is not). This stoush will only be resolved when the two parties realise the only ones making money out of this fight are the lawyers. Damn them all. Warren Fahey

Subject: RE: Kookaburra vs Down Under?
From: Rowan
Date: 30 Jul 09 - 06:37 PM

Well said, Warren.

Cheers, Rowan

Subject: RE: Kookaburra vs Down Under?
From: GUEST,Gerry
Date: 03 Feb 10 - 11:24 PM

The court has spoken.
http://www.abc.net.au/news/stories/2010/02/04/2809848.htm?section=justin
It begins, "Iconic Australian rockers Men at Work could be facing a hefty legal bill after a court ruled that they plagiarised part of their worldwide 1980s hit Down Under."

Subject: RE: Kookaburra vs Down Under?
From: quokka
Date: 03 Feb 10 - 11:31 PM

Has the world gone stark raving mad???

Subject: RE: Kookaburra vs Down Under?
From: Sandra in Sydney
Date: 04 Feb 10 - 03:43 AM

Warren's comment today on our national folk list -

subject - Yikes! That Kookaburra is making a hell of a racket up that old gum tree

Thanks to all those folk community people who either sent me emails congratulating me on my win in court - or emails slamming me for suing poor old Men at work.

As previously stated - I have nothing to do with Larrikin Music having sold it to Music Sales in 1988 (I needed the $ to pour into the record label - but that's another story).

The ruling in favour is part one of the legal contest - it will probably be appealed so the lawyers can make even more money.

Cheers

Warren Fahey

Subject: RE: Kookaburra vs Down Under?
From: Joybell
Date: 04 Feb 10 - 04:25 AM

Such fun watching all this. My read on the comment by the EMI spokesman that the tune just popped into the arrangement is --
Why would this oh-so-familiar tune just happen to accidentally pop into a song called "Down Under".   
Just to set the record straight here's 1/2 of the tune there not just a few notes.
Cheers, Joy

Subject: RE: Kookaburra vs Down Under?
From: Nigel Parsons
Date: 04 Feb 10 - 04:56 AM

Also used to soothe the young child Chloe Webber in the Doctor Who episode "Fear Her", re-shown on BBC3 this week.

Cheers
Nigel

Subject: RE: Kookaburra vs Down Under?
From: robomatic
Date: 04 Feb 10 - 03:20 PM

From an American non-musican perspective:

The bulk of the song "Down Under" stands on its own and is a jolly good song.

The riff most definitely sounds like a play on "Kookaburra" while not being identical to it (We used to sing Kookaburra in elementary school, first verse only, in rounds, and even modern young Americans seem familiar with it). I think it is fair to say the Men at Work song did a musical reference to Kookaburra, identifiable on a subliminal level, if not a quote, and musically it was well worth doing.

If I was to be street judge, I'd say it was no way plagiarism but there is a relationship which profits both songs, and maybe Down Under should throw a little something into the Larrikin kitty, but not millions.

Subject: RE: Kookaburra vs Down Under?
From: Paul Burke
Date: 04 Feb 10 - 03:38 PM

This illustrates the stupidity and tragedy of copyright. The person who wrote it (assuming she didn't just adapt it) is long dead, and won't enjoy the fruits of her labours. Which were slight, anyway- compared to, say the works of her contemporaries who were developing antibiotics like penicillin at the time. The moolah will fall to parasitic IP owners, who put nothing creative into it, or if they are lucky to descendants of the author, who also didn't create it. If penicillin was ever patented, it lapsed at least 50 years ago. The descendants of those creators get zilch, which is as it should be, and any pharmaceutical manufacturer can make penicillin, which is also as it should be.

Why is small and unimportant creativity privileged above things that change the world? (rhetorical question)

Subject: RE: Kookaburra vs Down Under?
From: Tangledwood
Date: 04 Feb 10 - 03:51 PM

If it is so obviously plagarism why did it take 26 years for them to notice?

Subject: RE: Kookaburra vs Down Under?
From: Melissa
Date: 04 Feb 10 - 04:00 PM

Where is this infringement supposed to be?

I sang Kookaburra for years..
I was in college during Down Under popularity (and heard it far more times than any girl should)

When this thread surfaces, I try to figure out where the Kookaburra bit is..and still haven't managed to locate it.

Is it obvious, or is it something like a series of three notes?

Subject: RE: Kookaburra vs Down Under?
From: Blowzabella
Date: 04 Feb 10 - 04:17 PM

Apparently it's the flute bit ... so it said on the news

Subject: RE: Kookaburra vs Down Under?
From: Melissa
Date: 04 Feb 10 - 04:23 PM

hmm..nope, I still don't hear it.
Do any of you?



"Where beer does flow and men chunder"
What does 'chunder' mean?

Subject: RE: Kookaburra vs Down Under?
From: Les from Hull
Date: 04 Feb 10 - 05:28 PM

I'm afraid it means vomit, Melissa - from a cautionary cry 'watch under'. See also technicolour yawn, pavement pizza, shout Ruth etc.

Of course I'm not an Aussie meself, but I was a devotee of 'The adventures of Barry Mackenzie', as serialised in Private Eye many, many years ago.

Subject: RE: Kookaburra vs Down Under?
From: Melissa
Date: 04 Feb 10 - 05:31 PM

ah..now that's something I wouldn't have learned anyplace else!

thanks, Les

Subject: RE: Kookaburra vs Down Under?
From: Joybell
Date: 04 Feb 10 - 05:36 PM

While not commenting on the legal issue I'm reporting the bit as I hear it.
It's obvious. I believe it was deliberate. In the film clip shown on the Australian news there was a flute player sitting in an old gum tree as he played the first half of Kookaburra.

Melissa -- Chunder = vomit.
As in "Chunder in the old pacific sea".
Cheers, Joy

Subject: RE: Kookaburra vs Down Under?
From: GUEST,Gerry
Date: 04 Feb 10 - 05:51 PM

Tangledwood, apparently it was an Australian TV game show in 2007 that got Larrikin's attention. I quote from http://www.news.com.au/entertainment/music/quiz-show-sparks-aussie-anthems-battle/story-e6frfn09-1111117725552

Mr Lurie [Larrikin Music Publishing managing director] said the alleged Kookaburra connection was raised on the ABC TV show.

"This question was posed on Spicks And Specks: 'What children's song is contained in the song Down Under?' The answer was: 'Kookaburra'," Mr Lurie said.

"The next day, my email and phone lit up with people asking: 'Do you know about this?'

Subject: RE: Kookaburra vs Down Under?
From: Joybell
Date: 04 Feb 10 - 06:13 PM

Speaking as a very, very small player in the entertainment business -- and not from the informal side of singing.
I think that if we small players pay our dues or have them paid for us through organizations who employ us -- then big companies should do the same.
Cheers, Joy

Subject: RE: Kookaburra vs Down Under?
From: Melissa
Date: 04 Feb 10 - 06:14 PM

Men at Work accused of plagiarism over 'Down Under'

http://www.youtube.com/watch?v=jCyB2l5wqLE



Ok..I listened to this on youtube. I still don't hear anything other than two melodies that can be played together but aren't the same.

Subject: RE: Kookaburra vs Down Under?
From: Joybell
Date: 04 Feb 10 - 07:09 PM

To add to my comments on the commercial use of copyrighted songs and melodies I note that, here in Australia, anyway there are exemptions for the use of songs in not-for-profit situations. Schools, fundraising for charity, private gatherings etc. This case is not about that.
Cheers, Joy

Subject: RE: Kookaburra vs Down Under?
From: Sandra in Sydney
Date: 05 Feb 10 - 08:53 AM

Pesky kookaburra drops one on the debate over copyright law includes video of Downunder, a children's choir singing "Kookaburra" & pics of 1934 girl guides.

sandra

Subject: RE: Kookaburra vs Down Under?
From: GUEST,Shakespeare
Date: 05 Feb 10 - 09:13 AM

Rather than people guessing and opining on incomplete news stories, why not just read the actual decision?

http://www.austlii.edu.au/au/cases/cth/FCA/2010/29.html

Most of your questions are answered there.

Colin Hay in direct and cross examination, and Greg Ham, the flautist, in an affidavit admitted that two bars (the "merry merry king of the bush is he" part) of "Kookaburra" is used in the second half of the flute riff. So it's in there and while technically that amounts to "half the song" it is only two bars, because "Kookaburra" is only four bars long. So yes, a two bar nod in the flute riff - a musical reference to Australiana.

The question really is, should a brief musical quotation for humorous effect amount to copyright infringement some 29 years after the recording is made?

I don't believe it should and if I were Colin Hay or EMI I would be appealing. If I were Ron Strykert, I'd also want to show up for court.

Shakespeare

Subject: RE: Kookaburra vs Down Under?
From: Les from Hull
Date: 05 Feb 10 - 11:07 AM

This looks like the end of parody in Australia. The courts ruling on this would affect bands such as Sensitive New Age Cowpersons if they ever became popular enough to make the amounts of money that these evil greedy suits think they could rip off. The author of the song obviously didn't want this to happen, and the Australian Courts have taken no notice of this.

But as the tune is an old Welsh one it doesn't matter anyway.

Subject: RE: Kookaburra vs Down Under?
From: Tangledwood
Date: 05 Feb 10 - 06:24 PM

Shakespeare - interesting link, thank you. It got a bit heavy to read everything there, but I didn't see anything to suggest that Colin Hay or Greg Ham had deliberately lifted the phrase from "kookaburra".

Tangledwood, apparently it was an Australian TV game show in 2007 that got Larrikin's attention.

Yes, I watched that show when it first went to air. That was the first time that I thought about any connection between the songs. I still question why it took so many years for anybody at Larrikan to make the connection.

Given that a piece of music is restricted by key to a certain selection of notes, and by rhythm to to certain phrasing, isn't it mathmatically inevitable that a riff in one piece will someday show up elsewhere? We can never play the sequence dee dee dee dah because it came from Beethoven's Fifth? How many bars have to be duplicated before it becomes plagarism?

If the law looks for precedences from previous cases wouldn't this ruling also apply to writing? Common phrases such as "once upon a time" or "It was a dark and stormy night" could never be used again.

Les, that's a gloomy prospect isn't it? Unfortunately SNACs split up a couple of years ago so I guess they'll never be put in that situation.

Subject: RE: Kookaburra vs Down Under?
From: mousethief
Date: 05 Feb 10 - 06:31 PM

I think you're overstating your case, Tangledwood. This is a clearly recognizeable snippet, chosen to be recognizeable.

The problem I have is that a certain amount of musical "quoting" isn't allowed by copyright law the same as it is in books.

Then again all of international copyright law seems to me ought to be thrown out and re-written. I believe in copyright, which is by definition temporary, not "intellectual property", which is conceivably indefinite.

O..O
=o=

Subject: RE: Kookaburra vs Down Under?
From: Joybell
Date: 05 Feb 10 - 09:25 PM

I'm not sure that it has been established that this comes from an old Welsh tune. I believe there's some evidence that the tune and the words were taken up by Welsh singers and then the words were translated. Most sites seem a bit confused about that. Anyway the court in this case didn't buy the "old Welsh tune" idea.

My comment still stands that this was the commercial use of a copyrighted song and used to make a million and a Grammy. We little people pay a percentage of our income, (and it sure isn't a million and a Grammy) to cover copyright fees. Big companies should not be above the law. If the law is changed -- fine! I'll keep my $50 fee and not bother about filling in forms at festivals.
Cheers, Joy

Subject: RE: Kookaburra vs Down Under?
From: Tangledwood
Date: 05 Feb 10 - 10:10 PM

My comment still stands that this was the commercial use of a copyrighted song and used to make a million and a Grammy.

As I understand it the part of the kookaburra song in question is the twelve note flute sequence in Land Downunder. Even if we accept that it was used illegally I would be very surprised if a couple of bars of flute accompaniment can make any difference in the success or otherwise of a song.
If it does I might trade in my mandolin. :)

Subject: RE: Kookaburra vs Down Under?
From: Les from Hull
Date: 06 Feb 10 - 09:57 AM

It's parody. Just bloody parody. Just 'cos lawyers don't get it doesn't mean it doesn't exist.

Subject: RE: Kookaburra vs Down Under?
From: Joybell
Date: 06 Feb 10 - 05:18 PM

It was not necessary to prove what part the use of "Kookaburra" played in the selling of the song "Down Under".
My main point is that a big company should be willing to work within the law -- and that they can well afford to pay their dues.

A parody? The winning side must have used the same dictionary as mine when they answered that defence.
Cheers Joy

Subject: RE: Kookaburra vs Down Under?
From: Rowan
Date: 09 Feb 10 - 04:47 PM

From the Ausfolk List

LARRIKIN RECORDS AND LARRIKIN MUSIC FOUNDER SPEAKS OUT.

The founder of Larrikin Records and original owner of Larrikin Music, Warren Fahey, has suggested a way of resolving the dispute over the use of Kookaburra Sits in the Old Gum Tree by Men at Work in its iconic: Land Down Under" hit.

Fahey wants the copyright owners, Larrikin Music, to "gift" the song to Australia, arguing that most Australians believe they already have public domain ownership.

Having remained silent during the lead-up to the now infamous court ruling on Men At Work's use of the Marion Sinclair children's composition, Kookaburra Sits On An Old Gumtree', Larrikin's founder, the cultural historian, Warren Fahey, said today he had been forced to enter the fray.

"The past week has seen thousands of emails, letters to the editor, radio commentary and internet forums criticising the judgement," Fahey said.

"Many of these incorrectly criticise Larrikin Records and myself as the protagonist asking, "how could someone so dedicated to Australian music do such a thing?"

Warren Fahey sold Larrikin Music to Music Sales Corporation in 1988 and, in 1995; Larrikin Records was sold to Festival Music. Warren's internationally recognised folk ensemble, established in 1969, is still called The Larrikins.

He comments, "The Larrikin brand has certainly been tarnished by what many see as opportunistic greed on behalf of Larrikin Music/Music Sales."

The Court has ruled that Larrikin Music indeed owns the 'Kookaburra' song and that Men At Work used part of that melody in their internationally successful song 'Land Down Under'.

Although many dispute this ruling it is now legally sanctioned. The point at issue here is a cultural copyright issue, says Fahey. "Like 'Happy Birthday' this song is seen as being in the Public Domain. The fact that there are so many parodies in circulation and that Australians have been singing the ditty for so long is testament to this anonymous circulation.

Fahey continues, "Happy Birthday is a good comparison because it was written under similar circumstances and entered the oral tradition before being taken up by a commercial publisher. Composed by two American kindergarten teachers in 1893 as 'Good Morning To All' the original composers never claimed copyright or publishing. Even when published as sheet music in 1912 it was never claimed by composer of publisher. In 1935 a publisher named Summy Music published an arrangement, changing the title to 'Happy Birthday To You', and credited two new composers.

By this time the song had really entered Public Domain. In 1990 Warner Chappell Music purchased Summy Music for $15,000,000 and has tried, unsuccessfully, to enforce its publishing right (which expires in 2011). Several Law Professors in the USA have already defended the song as Public Domain and any publishing claim unenforceable."

"The above reinforces the 'Kookaburra' claim of Public Domain in Australia. Copyright is a strange beast and Public Domain even stranger.

Australian musicians are rightfully angry about the decision because the creation of music is always influenced to some degree by other music. This ruling is seen as a threat to musical creativity and, to some extent, the Australian spirit of larrikinism.

Warren Fahey has what he says is a solution. "Larrikin Music, as the legitimate publishers of the Marion Sinclair song, have a right to claim for its use – even if many see this Men At Work claim as inappropriate and aggressive.

"As a cultural historian and one who has specialised in music I call upon Larrikin Music to 'gift' this song to the nation - which obviously already believes it has public domain ownership of it.

"Larrikin Music should be entitled to collect an appropriate settlement if they see fit but then should allow the song its own life so as to ensure future young Australians can sing and perform it for generations to come, without limitation.

"As an assessor for the Commonwealth Cultural Gift Program I would suggest that there might even be an attractive financial benefit to Larrikin Music from such a cultural gift. Such a gift would also been seen as an appropriate larrikin action!"

Warren Fahey

Cheers, Rowan

Subject: RE: Kookaburra vs Down Under?
From: GUEST,Gerry
Date: 09 Feb 10 - 05:33 PM

Good on ya, Warren.

Subject: RE: Kookaburra vs Down Under?
From: Uke
Date: 09 Feb 10 - 09:52 PM

Can't help wondering how Men @ Work would react if somebody plucked out the eight-or-so notes of "Land Down Under"'s iconic chorus melody and put them in a song. Which was then a massive hit.

Hmm, would they not be thinking about getting a little compensation?

It's all very well shaking our heads at the absurdity of the court ruling, but hey, if you wish to live by the copyright, then be prepared to... er, die by the copyright. (As it were).

Subject: RE: Kookaburra vs Down Under?
From: Sandra in Sydney
Date: 10 Feb 10 - 07:56 AM

letter to the editor in Wednesday Feb 10, Sydney Morning Herald - scroll down to "Mangrove molehill" by John Whitteron

as it's a looooong scroll - here it is -

Mangrove molehill

When Tony Stevens and I made the Down Under video all those years ago, the shot of Greg Ham in a tree playing a flute had nothing to do with kookaburras (Letters, February 8). The video was mostly shot in the Cronulla sandhills and the only option for something visually different was the mangrove swamp opposite the sandhills. Initially Greg was supposed to be ''strolling through the mangroves'' but by the time we got to that shot, the tide had come in and he had to sit in the tree. No kookaburras, no gum trees, just a quickly made, low-budget music video.

John Whitteron Bondi Beach

Subject: RE: Kookaburra vs Down Under?
From: autoharpbob
Date: 10 Feb 10 - 11:38 AM

The law is a mess, but people have got to know what it says and stick to it. The law says that you can only use someone else's work to make money for you if you have their permission. That seems eminently reasonable, and I say this as someone who has been ripped off in my other life as an artist - someone in Switzerland thought they could print my drawings on T-shirts without asking first. I had to disabuse them of that notion. There has to be a copyright law to stop people making money for nothing - hey, thats a good title!

The law says that the whole work does not have to be copied, just a significant part. Half the tune is significant. The law also says it does not have to an exact copy - it just has the pass the "recognisable" test - ie does a jury think it has been copied? The law says everyone can sing Kookaburra to their hearts content - what they cannot do is sell recordings of it. The parody argument is the one I would have gone hardest on in court, but I would still expect to lose on this. But I think this is so close that an appeal might well be won, and I also think that damages should not be high - what damage to "Kookaburra" has been done? And I love Warren's idea of freeing the tune.