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In a recent court case, the Australian rock band “Men At Work” were found to have infringed on the copyright of a famous Australian folk song, “Kookaburra Sits in the Old Gum Tree”, by using the melody as an accompanying flute riff in their hit song “Land down under”.
The lawsuit was launched by a company named Larrikin Music, who had purchased the rights to the Kookaburra song in 1990, following the death of its original creator Marion Sinclair – a music teacher, who wrote the song in 1934 for use at a Girl Guide jamboree.
Here are some media links:
I have been asked what I think of this.
The fact is that copyright law is very clear on the rules concerning the use of other people’s copyright works. Colin Hay, the lead singer of Men at Work, has confirmed that the flute riff was a homage from “Kookaburra sits in the old gum tree”. If Larrikin Music are the legal owners of the copyright, they have a case in law. The question is how much should they pay in royalties. To determine what is correct, we should consider the following:
1. The song “Land Down Under” was released by Men at Work in 1981. The creator of the original song, Marion Sinclair, never raised any complaints when she was alive. The song was very popular, and no doubt if she felt that it infringed on her rights, she would have said something.
2. It took 20 years for any members of the public to find a connection between both songs. Indeed, Larrikin Music only became aware when it was mentioned on the ABC TV music game show “Spicks and Specs” in 2008 , so one could hardly argue that the connection between the songs was obvious or significant.
3. The copyright was purchased by Larrikin Music in 1990, from the South Australian public trustee, following the death of Sinclair in 1988. According to media reports, they paid several thousand dollars for the song and now Larrikin music have suggested that they want to be paid between 40-60% of the royalites on Men At Work’s song in compensation. This certainly reeks of cheap opportunism.
4. Marion Sinclair did not enforce her copyright on the song, effectively letting it be sung without restrictions, leading to the song to come to be known in Australian society like a traditional ‘Aussie folk song’. It is sung regularly by children in schools who have never been asked to pay for royalties.
For these reasons, it is my opinion that Men at Work did infringe on the copyright, but any royalties should be limited to a token payment.
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