King of the Bush

Mike is right to think I’d be interested in the ongoing stoush between Larrikin Music and Men at Work over Down Under‘s use, in its flute part, of Kookaburra Sits in the Old Gum Tree.

Marion Sinclair won a Girl Guides Victoria competition with Kookaburra in 1934, and the copyright may still belong to the Girl Guides (perhaps they should sue?).  Sinclair clearly thought she owned the song, because she gave the copyright to the Libraries Board of South Australia in 1987.  I don’t what this says about how Australia funds its libraries, but Larrikin Music bought the copywrong/right in 2000.

Most of us have quite sensible opinions on matters of song ownership which are based largely on emotion and don’t count for squat in a courtroom.  So let’s cover those, shall we?

I don’t think, for starters, the flute part is an integral part of the song.  The melody and the lyrics, yes, but the flute part is just cute icing.  And it’s hard to believe that Colin Hay and Ron Strykert, the listed writers of the work, wrote Greg Ham’s flute part for him.  I bet Ham came up with it during rehearsal, and everyone said, “That’s good, mate.  Do that.”  Our antiquated copyright laws are still based on published sheet music, though, so I’m guessing the published sheet music for Down Under includes the perky flute part, and that makes it integral.

I also think the harmonic context (the flute riff is played over the minor chord in the progression) makes it sound much less like Kookaburra, and that’s partly why it took the writers of Spicks and Specks to bring it to Larrikin’s attention.  Still, it doesn’t matter if they know their own music, only that they own it.

Any damages won in such a case are supposed to replace lost earnings.  What would those lost earnings be?  Did you learn Kookaburra from a recording you bought, or was it passed on to you orally?  Musicians, if you were asked to play it, would you buy the sheet music, or would you work it out by ear?  Performers, have you ever engaged in a public performance of Kookaburra, and duly filed your Live Performance Return with APRA?

Now, it would also be easy to argue that Larrikin would never sue for an infringement by, say, the Electric Pandas, but that’s not the point.  It would be easy to argue that Larrikin don’t need the money, but that’s also not the point.  And it would be easy to argue that the amount of lost earnings is practically zilch – not the point.  Purely emotive, these arguments.

In October of last year, Larrikin Music Publishing managing director Norm Lurie also had an emotive argument, conjuring up a kerosene-bathed and cockroach-bitten Marion Sinclair: “It really saddens me to think that, in the last years of her life, while Down Under was having huge commercial success, she was in a nursing home, not earning any money from it, and was probably entitled to.”

If Larrikin recieves any money from the suit, I look forward to seeing their big donations to Girl Guides Victoria and Australia’s nursing homes.  It is, apparently, what Ms Sinclair would have wanted.  That, surely, is the point.

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14 thoughts on “King of the Bush

  1. Is there any concept in copyright law of a tribute? Cause that’s what this is. A tribute. A cute reference to Kookaburra Sits in the Old Gum Tree acknowledging its iconic sound.

  2. Yep, it’s called fair dealing, and I’d argue that’s what this is. It’s fair dealing when jazz players quote you in their solos (which, as Mike pointed out, would be a legal minefield if it weren’t allowed.) Of course, no jazz recording ever made as much money as ‘Down Under’ …

  3. That’s what I was going to ask. I reckon it’s on a par with the reference to Vegemite sandwiches in one of the verses – another bit of Australian texture. Although a songwriter now would probably think twice before dropping a trademark into their lyrics.

    I think the flute line is integral to the song as a pop single, though, because I can’t imagine it would have been as much of a hit without it. It’s one of those classic distinctive hooks that make a single instantly recognisable.

    It could have worked just as well in that sense without the quote from ‘Kookaburra’, though. Which is what it did for UK and US audiences, who couldn’t be expected to get the reference.

    And, sure, it’s icing. But when was the last time you ate a cake that didn’t have icing?

    Also – one of my Twitter friends commented that when you first see Greg Ham play the riff in the video, he’s sitting in a tree…

    • In addition, ladies and gentlemen of the jury, you will observe that the tree in question does not appear to be of the genus Eucalyptus but is in fact a mangrove.

  4. I’m sorry but I would argue (and I must point out here that I don’t have the status of either of you on the subject of music, nor a law degree) that the Kookaburra line is not the hook on which this song was a hit. It was a hit because it was called Down Under … and the chorus was easy to remember and sing when drunk, and because it appealed to Australians as a kind of an anthem … and I should know cause I’ve seen them in action in overseas contexts … and because it was one of those quirky eighties things like “Six Weeks in a Leaky Boat” that somehow caught the imagination of anyone who wasn’t Australian.

    • Hey, wait a minute – “Six Months in a Leaky Boat” has that funny sailor’s hornpipe bit instead of a middle eight, with a tin whistle!

      Hmm…. maybe to have a global hit in the 80s antipodean bands needed to have some woodwind action… (INXS? Did they have like a recorder solo in any of their songs?)

      Seriously though, I don’t think the flute was the only thing that made it a hit, all the points you make are true. I do think it helped, though.

    • With guilt brimming I tripped over the ‘net to facebook, where I found your message and a non-working link.

      Can it be re-sent?

  5. … and it’s only 2 bars they’ve used fer chrissakes.

    The court was told “Kookaburra Sits in the Old Gum Tree is
    a distinct and memorable Australian melody” ?

    NOT AT ALL.
    It is Welsh.
    The same tune as the very very old Public Domain Welsh folk song “Wele ti’n eistedd aderyn du?” NOT owned by Larrikin/Festival records Australia, and onto which MarionSinclair imposed her kookaburra lyric in 1932.

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