Back in 1981, the band Men at Work found they had a hit on their hands with the song "Down Under," an intensely Australian piece that's since become a patriotic song. Incorporated within it is a short but memorable flute riff, and it's that riff that has been causing problems now. On Thursday, an Australian court ruled that Men at Work plagiarized this riff from "Kookaburra," an Australian folk tune written by Marion Sinclar and which was the winner of a 1934 Girl Guides competition. Today, of course, it's owned by a corporation, Larrikin Music, and corporations aren't too shy to release the legal hounds.
I'll admit that, on the face of it, it's understandable. I've listened to "Down Under" and "Kookaburra" both, and the flute riff does significantly echo the opening of the earlier song. The problem in this case, though, is that there seems to have been no thought by the ruling judge about the implications of this. I've thought about them, and I certainly don't like them.
I suppose that the charge of plagiarism gains its energy from the fact that "Kookaburra" seems to be shorter than "Down Under," and so a comparatively large portion of it was incorporated into the song as the flute riff - though due to its age and nature as a frequent choir song, it's not particularly easy to get an official running time. "Down Under," for its part, is three minutes and forty-one seconds long. I listened carefully to the song, and I heard the flute riff at four separate points: 0:13 - 0:15, 0:54 - 0:56, 1:56 - 1:58, and 2:01 - 2:03. Eight seconds. By my reckoning, this amounts to four percent of the song.
What's ridiculous is that the Star article where I learned about this references Larrikin's lawyer as saying that the company "might seek up to 60 per cent of the royalties 'Down Under' earned since its release." I find this offensive for two reasons - first, as I said, the "Kookaburra" flute riff occupies a tiny fraction of the song. Second, in what I think is a far more damning turn of events, Larrikin Music did not acquire the rights to "Kookaburra" until 1990, following the death of Marion Sinclair in 1988. To me, this is yet another example of a corporation overreaching common bounds and common decency because it's picked up the scent of money in the water. If anyone other than Men at Work should be getting royalties for this, it's the estate of Marion Sinclair or the Girl Guides, the two entities that actually owned the rights to "Kookaburra" when "Down Under" was written.
Beyond that, though, what this really comes down to is yet another assault on the perceived public domain. The average person has always had a different view of copyright than the law does. Even a song as basic and fundamental as "Happy Birthday" is thought to be under copyright - not, of course, that anyone actually cares, and any serious attempt by a claimed copyright holder to assert rights would practically fire off a revolution. Songs like these are held by people as part of the culture and the common trust, something that is owned by everyone and no one, regardless of what corporations might think.
Creativity has always been about incorporation and remixing. It's not possible, after tens of thousands of years of human culture, to create something truly original anymore. Memes migrate through minds and are installed as patchwork into new creations. When I see cases like this, I see corporations trying to build paddock fences around these concepts and keep them out of the common. It's a concept that can't be allowed to continue, or our culture will inevitably be the poorer for it. Copyright is a means to help ensure that artists can make a living on their work - it was never meant to be a method to keep essential cultural memes under lock and key.