Well starve the developers and throw another Land and Environment Court on the Barbie. The song “Down Under”, a big hit for Men at Work, has been hit with a lawsuit from the publishers of another Aussie song, “Kookaburra Sits In The Old Gum Tree”
Meanwhile, the Great Wombat Backside Of Somewhat Overhyped Media Based Public Forum Justice is trying to determine whether Men At Work’s famous pro Vegemite propaganda anthem has infringed on a song which has stunned people with its powers of ornithological observation since the 1930s. (Until then it was believed Kookaburras sat in chairs, like normal people.)
This particular storm in a billabong (that’s the watercourse of the same name in
Waltzing Matilda, not the equally notorious process of inducing narcosis in Australians paying bills) was caused when Larrikin Records sued Men At Work’s songwriters for breach of copyright, claiming they owned the copyright to the old song. Men At Work have hit back with a counter claim that Larrikin doesn’t in fact own the rights.
The Sydney Morning Herald, which has apparently succeeded in finding a relatively psychotic looking picture of Colin Hay, if nothing else, explains:
Larrikin claims it had won a tender for the copyright for Kookaburra from the South Australian Public Trustee in 1990, after Ms Sinclair died.
This, thoughtful readers, if not The Sydney Morning Herald, may have noticed, was after the release of
Down Under in the early 1980s. That raises some interesting points about whether anything is claimable, even if any breach of copyright is proven. The Public Trustee was the custodian of
Kookaburra at the time. The fact that
Kookaburra was in the hands of the trustee doesn’t mean that there was no applicable copyright, but it does raise the issue of possible “public domain by default”.
It is obviously quite possible to buy copyright materials from the trustee, but it doesn’t necessarily mean that anyone was at fault during the period in which
Kookaburra was in its custody, either. Realistically, it’s debatable if a music publisher could scour the country looking for a song written in the 30s, even if they’d known there was an issue.
Whether or not there was any actual breach of copyright is also debatable, having listened to a version of
Kookaburra. There’s something very vaguely like, but it doesn’t sound like it’s even a full bar of
Kookaburra, let alone
Down Under, to me. The Sydney Morning Herald has a
video of the two songs together.
(Please be advised, there are large numbers of singing children in costume, in what looks like a school auditorium, which may terrify some viewers and possibly other auditoriums.)
Where you put the bar in a piece of music has a lot to do with copyright. The times sound pretty different, too. I’m not convinced that there’s much more than a few notes in roughly the same order, at best. You’d have a pretty hard time mistaking one song for another.
Somebody’s pointed out that the flutist in
Down Under is sitting in a tree, and considers that significant. It isn’t, really. All Australian flutists sit in trees. It’s safer for them, and nicer for pedestrians. Jethro Tull’s Ian Anderson was a bit surprised, but otherwise it hasn’t attracted much controversy, until now.
So is it a case of coming the raw prawn down the rissole? Will the zinc cream of shame be pasted on Men At Work, or will the beer gut of failure adorn fair sunbronzed Larrikin? Will thousands of flute playing kookaburras take to the skies, seeking revenge?
Is it acacia mistaken identity, or emu laughs last?
