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.