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Men At Work


Cry Logic

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John Sayers mentioned this in my other post,

(Australian ISP wins Piracy case against Film Industry!)

But I thought it deserved it's own thread.

 

This is about Men at Work being sued for copyright infringement

over their worldwide smash hit "Down Under".

 

They were sued by Larrikin Records who own the copyright to

an old Australian Folk song called "Kookaburra Sits in the Old Gumtree"

or just plain "Kookaburra".

For those who don't know, a Kookaburra is an Australian Native bird

of the Kingfisher family, known for their crazy "laughing" call.

More like a cackle really .... but I digress.

 

The case revolved around the flute riff in "Downunder".

more specifically, the 2nd 1/2 of the flute riff.

It was alleged that the melody was plagiarised from the "Kookaburra" song.

The original song didn't include the flute part.

It was written by the Singer and Guitarist of Men at Work and

the flute part was added later.

 

The case was recently found in favor of the plaintiff.

 

Below are YouTube clips of each song.

What do you think of this decision?

Do you think the judge got it right?

 

 

[YOUTUBE]DNT7uZf7lew[/YOUTUBE]

 

[YOUTUBE]l1Uq6AB_4hM[/YOUTUBE]

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That's the dumbest thing in the world

 

Colin Hay replies

 

Read the whole thing, but...

 

 

...a song, namely Down Under, which was created and existed for at least a year before Men At Work recorded it. I stand by my claim that the two appropriated bars of Kookaburra were always part of the Men At Work "arrangement", of the already existing work and not the "composition".


It was inadvertent, naive, unconscious, and by the time Men At Work recorded the song, it had become unrecognizable. It is also unrecognizable for many reasons. Kookaburra is written as a round in a major key, and the Men At Work version of Down Under is played with a reggae influenced "feel" in a minor key. This difference alone creates a completely different listening experience. The two bars in question had become part of a four bar flute part, thereby unconsciously creating a new musical "sentence" harmonically, and in so doing, completely changed the musical context of the line in question, and became part of the instrumentation of Men At Work's arrangement of Down Under.

 

 

 

 

 

 

 

The copyright of 'Kookaburra' is owned and controlled by Larrikin Music Publishing, more specifically by a man named Norm Lurie. Larrikin Music Publishing is owned by a multi-national corporation called Music Sales. I only mention this as Mr. Lurie is always banging on about how he's the underdog, the little guy. Yet, he is part of a multi-national corporation just like EMI Music Publishing. It's all about money, make no mistake,

 

 

 

It is indeed true, that Greg Ham (not a writer of the song) unconsciously referenced two bars of 'Kookaburra' on the flute, during live shows after he joined the band in 1979, and it did end up in the Men At Work recording...When Men At Work released the song 'Down Under' through CBS Records (now Sony Music), in 1982, it became extremely successful. It was, and continues to be, played literally millions of times all over the world, and it is no surprise that in over 20 years, no one noticed the reference to 'Kookaburra.'

 

 

 

Mr. Lurie claims to care only about protecting the copyright of Marion Sinclair, who sadly has passed away. I don't believe him. It may well be noted, that Marion Sinclair herself never made any claim that we had appropriated any part of her song 'Kookaburra,' and she wrote it, and was most definitely alive, when Men At Work's version of 'Down Under' was a big hit. Apparently she didn't notice either.

 

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I also think it's ridiculous but there's another aspect to this story.

 

apparently EMI sued Larrikin over a Tom Waits song Larrikin published where the words of Waltzing Matilda were narrated over the end and EMI held the copyright of Waltzing Matilda..

 

"Tom Traubert's Blues" Chorus

 

 

now the dogs are barking

and the taxi cab's parking

a lot they can do for me

I begged you to stab me

you tore my shirt open

and I'm down on my knees tonight

Old Bushmill's I staggered, you buried the dagger in

your silhouette window light to go

waltzing Matilda, waltzing Matilda, you'll go waltzing

Matilda with me

 

 

EMI won the case and Larrikin had to pay EMI 5% of the Royalties.

 

It's been suggested this is payback time!

 

BTW - my avatar is a Kookaburra

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I confess, I DO hear it, and I suspect Men At Work (or their mix sweeteners) were indeed seeking to give their tune an "Australian flavour" by subtly quoting that folk tune. From the beginning, MAW capitalized on their "Down Under"-ness to sell their image on MTV and elsewhere. No crime in that. That particular song lyric contains numerous references to things which are popularly thought to be strictly Australian.

 

But to be fair, they were probably 100% convinced that "Kookaburra" was such an old folk tune, that it surely must be within the Public domain by now. Like, how we Americans would imagine a Stephen Foster tune to be today.

 

I mean, how many of us know that "Happy Birthday (To You)" is still under copyright?

 

Plagiarism suits have been lost over nonsense even subtler than this. I'm thinking of the way Bette Midler sued.....and won.... when a car commercial featured a girl singing "Do Ya Wanna Dance?" slowly and sexily. Midler claimed that her "style had been appropriated". Not her song, her "style". What's the world coming to if you can't imitate somebody else's "style" ?

 

As we know, Huey Lewis's "I Want A New Drug" was successfully sued by Ray Parker, Jr., when it was alleged that Lewis's tune USED THE SAME CHORD CHANGES as Parker's "Ghostbusters". We're not even talking melodic plagiarism here.... but rather, merely using the same set of chord changes!

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It has been suggested that the Kookaburra song was taken from an old Welsh folk song.

 

 

 

This is probably the greatest threat to musical

creativity in our time IMHO.

How can music grow and move forward if people

are too frightened to use, as inspiration, what

has gone before for fear of being sued?

 

They've managed to extend copyright way

beyond the original concept till it's reduced

music to monetized chunks to be owned,

bought and sold, fought over ......

 

Not what music is s'posed be about.

 

It's even more disturbing that this particular

fracas may be a simple payback for EMI

originally suing Larrikin over 3 lines from

Waltzing Matilda!

 

The musicians are are caught in the crossfire

of the shootout between the business men.

And yet without the musicians, there would be no

"Music Business".

 

It's beyond comprehension to me that a tune

like Waltzing Matilda or Happy Birthday can

be "owned" by some faceless corporation who

holds the copyright.

 

That's not copyright to me .. it's copywrong!

 

This way of thinking has directly contributed to the

rampant piracy that is blamed for the downfall

of the music business.

People justify piracy to themselves by rationalizing that

they're not stealing from the musicians but from the

soulless, greedy corporate executives.

 

It's all wrong and a terrible tragedy for music and musicians.

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I agree mate - I stated it was ridiculous from the start - I was just informing everyone of the other aspects to the story.

 

I know you do John.

 

My rant wasn't aimed at you in any way.

 

More inspired by your observation that

the Kookaburra song may itself have been

inspired by an earlier work .

And how that process is being killed off

by the shortsightedness and greed of corporations

and people who control and/or work for them.

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As we know, Huey Lewis's "I Want A New Drug" was successfully sued by Ray Parker, Jr., when it was alleged that Lewis's tune USED THE SAME CHORD CHANGES as Parker's "Ghostbusters". We're not even talking
melodic
plagiarism here.... but rather, merely using the same set of chord changes!

it was much more than the chord changes. It was the beat, the bassline, and Ray Parker even inverted the sax line from the Lewis song. The kicker was that the producers actually had "I Want a New Drug" in the rough cut of the film and when they told Parker that they wanted something like this (I Want a New Drug) he just copied it.

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I've known that Kookabura song since 4th grade, and even I've never noticed the snippet in "Down Under". It clearly is the same melody, but used so subtley--I probably would never have noticed had it not been pointed out. In fact, I've heard the song come on the radio several times since hearing about that lawsuit, and even then, I wasn't able to pick it out until now.

 

The Beatles did a similar thing, using part of Glenn Miller's "In The Mood" at the end of "All You Need Is Love", and I believe they ran into some trouble for it. So even the Fab Four weren't immune to that sort of thing.

 

This is somewhat off-topic, but first time I remember hearing "Down Under", I thought the guy was Jamaican. Anyone else have that experience?

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