Down Under vs Kookaburra

Info Info - Tuesday, June 08, 2010

Down Under vs Kookaburra

There has been a lot of discussion in recent months around the ‘Down Under’ vs ‘Kookaburra sits in the old gum tree’ case.  See: http://www.abc.net.au/news/stories/2010/06/07/2920250.htm?section=justin for the latest.

As the parties are back in court this week, I thought it timely to conduct a closer inspection of what is happening in this case.

It really comes do to an example of the significant portion rule.

Substantial portion

An infringement is seen to have taken place when a ‘substantial portion’ of the copyright-protected work is being used without the permission of the copyright owner or the payment of the correct royalty. So what exactly is a ‘substantial portion’?

It can be a question of quality and or quantity.  The question turns to the particular essence or quality of the part that is taken, not how many words or how much of the melody of the original work are used.  A snippet of a song (like ‘Kookaburra’) can still be an infringement

There is no hard and fast rule — it is different in every case. Generally, however, if the part of the copyright-protected music that you are using is recognisable as having come from somewhere else, you will need to obtain permission or pay a royalty — or provide a defence as to why you did not.

MYTHS ABOUT THE SUBSTANTIAL PORTION RULE

û    I can use any music I want, as long as I change a note or two.

û    I can use up to 13 seconds of a song without gaining permission.

û    As long as I’m not making a profit from using a song, I can use any part of it I want.

û    I didn’t know the part of the song I was using was ‘recognisable’, so I didn’t need to get permission.

û    I’ll just use it. No-one will ever know.

In the current case the authors of ‘Down Under’ are saying that the reference to Kookaburra is an insignificant portion.  It is important to note that their defence did not include a suggestion that there were no similarities between ‘Down Under’ and Kookaburra.  The last phrase of the flute riff in ‘Down Under’ is exactly the same as the opening melody line in Kookaburra.  The court agrees with this assessment and it is now up to the courts to decide what that substantial portion is worth in dollar terms.

Watch this space for a discussion of the courts ruling.

Comments

doc82 commented on 10-Jun-2010 08:39 AM

That the law itself is so vague really bothers me (as does much of copyright law, but that's another story reminding me of the O Brother Where Art Thou line: "The law is a human institution" - but I digress).

Personally I think it's got nothing to do with the current publishers protecting the integrity of a work they "own". Boiled down, it's just a money grabbing exercise involving an Australian pop song from 30-odd years ago, which (conveniently for the current publishers) has proven to be a success an ingrained itself heavily in the nation's musical and cultural history.

While I admit to the melodic similarity of the 'Down Under' flute riff and the 'Kookaburra' vocal line, there has to be room in music where ample space is provided for musicians to explore creativity involving innovative concoctions, combinations and iterations of previous works and influences without fear of litigation. Creativity needs to be encouraged and fostered, not rigidly controlled and stifled.

Ben O'Hara commented on 10-Jun-2010 01:32 PM

Hi Doc

You make some good points here, but I think your 1st point is the most important. If the law allows it, then it is the right of the original copyright holder (and some would say a requirement of the original copyright holder) to take action to try to protect the original work.

There have been countless cases when an 'innocent infringement' has taken place. (We discuss a number of these cases in our Copyright, Royalties and Publishing book) Innocent or other wise, the law is black and white. An infringement is an infringement. Have a read of the two copyright discussion papers in the 'Industry Research' section of the website. I am far from a huge fan of the current system...but it is the system we have. The owners of Kookaburra are always going to take action - if the law allows it.

Ben

Ben O'Hara commented on 28-Jul-2010 05:10 PM

The results of this case are in. Sony and the original composers of Down Under will only have to pay 5% of earnings since the early 1990's. The judge suggested that the claim for any more than that was over the top. So ultimately the judge is suggesting that having half of the flute riff in the song that is the same as 'Kookaburra' is equal to Kookaburra contributing 5% of the total composition. Is this fair? The question that you have to ask yourself is, 'if I wrote half of a 4 bar riff that appeared a couple of times in a song, would I be happy with a 5% share?'


The judge considered the evidence and looked at similar claims and eventually decided on the fact that 5% was fair. I think the interesting thing about this case as all the jumping up and down and outrage in the community when the case first went to court and then almost nothing when the 5% verdict came through. Is it fair to assume that all of those who were outraged considered 5% a fair amount as well?

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