Here’s the first time I wrote about Larrikin’s lawsuit against Colin Hay and Ron Strykert, and their claim that Down Under had unfairly used Kookaburra Sits In the Old Gum Tree. Then, Larrikin’s managing director Norm Lurie invoked the spirit of Marion Sinclair, Kookaburra‘s composer, but she didn’t rate a mention yesterday when Justice Peter Jacobson found in Larrikin’s favour. Instead, it was a mysterious 40 to 60 (not, not millions, but percent) who starred, and Larrikin’s lawyer, Adam Simpson, who gave this post its title. I’m guessing he’s on a commission.
Jacobson said some odd things. For starters, he took Men At Work’s flautist Greg Ham to task for plagiarising Kookaburra‘s melody, when Ham is not one of the listed writers of Down Under. That makes no sense. He also made the point that Down Under replicates “a substantial part” of Kookaburra, which is not hard to do with a tune that’s four bars long. The issue, surely, is the other way around: whether those two bars of Kookaburra constitute “a substantial part” of Down Under. So here’s an experiment:
Sing Down Under to yourself, same words, same tune, and leave out the two bars in the flute riff. Everything else remains. Is it still recognisably Down Under?
Now lose everything except the two bars. You can still have half the flute riff, but no vocals, no “do you come from a”, no vegemite sandwich, no plunder or chunder, and how Down Underish is what remains? No backing behind it, just the Kookaburra bit. Is it less Down Underish? What fraction would you call it? I’d say about a fiftieth.
Taking the six year statute of limitations into account, I therefore propose the following formula:
(Whatever Greg Ham has been paid, specifically for Down Under, in the applicable six years)/about 50 = what Larrikin should get.
By the way, if Jacobsen’s logic holds for other songs, here’s the situation that prevails:
If you quote a copyrighted work in your arrangement, you’re liable. Not in your melody and lyrics, where a song lives, but in your arrangement.
So here’s one: John Lennon’s cover of Lieber and Stoller’s Stand By Me has a guitar instrumental break that quotes Alex North and Hy Zaret’s Unchained Melody. This is what musos do: we know the two chord progressions are the same, so we play a little raffish quote, and hope John likes it. I know John recognised the quote, because in the live video version he sings most of Unchained‘s opening line “Oh, my love, my darling”. It’s not Lieber or Stoller’s words and music, but it’s a copyrighted work quoted in the arrangement, and there’s evidence Lennon knew about it.
By Jacobsen’s logic, Lieber and Stoller should now be sued by North and Zaret’s publishers. After all, Lieber and Stoller are the listed writers, and the Lennon version’s arrangement makes blatant use of North and Zaret’s copyrighted work.
Makes sense to me.