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  #1  
Old February 5th, 2010, 11:03 AM
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Default Kookaburra Sits in the Old Gum Tree...

...Waiting to collect her roy-al-tee...

Men at Work got legally spanked recently over their lifting of a melody for the flute riff in their old hit "Down Under".

Damages have not yet been awarded, but are expected to be on the order of half of the profits that the song ever made.

The thing that struck me was that apparently the band never claimed that they didn't lift the melody, but argued rather that the rights-holder didn't actually own the song. They seem to claim that the author GAVE the song to the Girl Guides, and that her later sale of the song to a publisher was therefore void... (Which to me would only mean that they owe the money to the Girl Guides...)

I think there's a lesson here about GETTING CLEARANCE if you know you are borrowing. I'd guess that someone cut a corner to save a little money back in the 80s, and that corner will now be paid for many times over.

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Old February 5th, 2010, 08:05 PM
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Default Re: Kookaburra Sits in the Old Gum Tree...

"Borrowing" a measure or 2 of someone else's song seems a bit borderline for plagiarism and IMO a lawsuit probably wouldn't even have been considered prior to the Whiter Shade of Pale verdict. I guess it depends on how important to the song the lifted passage is considered.

Did Jeff Beck get permission for "Mary Had a Little Lamb", "What's It All About Alfie", the theme from "Beverly Hillbillies", and whatever else made it's way into "Beck's Boogie"?

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Old February 5th, 2010, 09:50 PM
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Default Re: Kookaburra Sits in the Old Gum Tree...

The thing I'm wondering...MAW releases song in 1983...allegedly plagiarized song written in 1934...gets sued in 2008-2009.

What's up with that? How does the idea of "willful neglect of copyright enforcement" come into play in the damages phase?

It would seem then that perhaps the entirety of the Aussie cultural identity is off-bounds...make something that "sounds aussie", and you pay?
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Old February 5th, 2010, 11:44 PM
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Default Re: Kookaburra Sits in the Old Gum Tree...

I don't get the time lag, as virtually EVERYONE spotted it straight away and it was (I now see admittedly) an obvious 'reference'


frankly if I wrote the theme to the Beverly Hillbillies, I would have taken issue with Jeff Beck incorporating it into a record as well.
Again, it's not like it's an accident. It's a quote.

Mary Had A Little Lamb I suspect was PD
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Old February 5th, 2010, 11:50 PM
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Default Re: Kookaburra Sits in the Old Gum Tree...

I wonder if the "part of the iconic cultural identity" aspect is ever in play?
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Old February 5th, 2010, 11:54 PM
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Default Re: Kookaburra Sits in the Old Gum Tree...

If you wrote a song about being an American and you used Yankee Doodle Dandy as the solo, is it actionable?

I vote yes
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Old February 6th, 2010, 12:09 AM
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Default Re: Kookaburra Sits in the Old Gum Tree...

But why should the little flute riff = half the profits from the song? Was that half of what made the song salable?
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Old February 6th, 2010, 12:12 AM
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Default Re: Kookaburra Sits in the Old Gum Tree...

you can never answer that

the only answer is, if it's not 'important' then take it OUT

if it's important enough for you to USE my song in yours then I'm an EQUAL partner
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Old February 6th, 2010, 12:39 AM
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Default Re: Kookaburra Sits in the Old Gum Tree...

I agree in principle. What I see as a quagmire, is the chance that this will start a cottage industry of publishers aquiring rights to older compositions, and then going on forensic hunting expeditions for songs that might contain similarities.

For example, I would bet that "All You Need Is Love" has some actionable stuff in it, that some enterprising publisher could leverage a payday from....

thoughts?
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Old February 6th, 2010, 01:27 AM
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Default Re: Kookaburra Sits in the Old Gum Tree...

Yea, like the French government.
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Old February 6th, 2010, 02:11 AM
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Default Re: Kookaburra Sits in the Old Gum Tree...

I suspect EMI was smart enough to ensure an easy target like that used PD choices
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Old February 6th, 2010, 02:31 AM
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Default Re: Kookaburra Sits in the Old Gum Tree...

The time lag is strange.
If it's so obvious, why did it take nearly 30 years to figure out?

Also, this calls into question the whole idea of "quoting" in jazz. Or in rock.

It's a language, fellas.
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  #13  
Old February 6th, 2010, 04:13 AM
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Default Re: Kookaburra Sits in the Old Gum Tree...

It's a language when you "quote" someone else

it's theft when they "quote" you
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Old February 6th, 2010, 05:26 AM
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Default Re: Kookaburra Sits in the Old Gum Tree...

the thing is, in australia that song is SO WELL KNOWN that nobody would ever think of OWNERSHIP of it... it's a people's song, sort of. may as well be public domain.

and so i and i'm sure quite a few others think that this is a disgusting act of money grubbing. why now? why not 26 years earlier?
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Old February 6th, 2010, 06:30 AM
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Default Re: Kookaburra Sits in the Old Gum Tree...

Much like the old adage of punters leaving concerts not humming or whistling the colour green from the lightshow...

As important a part of the song the flute line is - which the "offending" parts are the second and fourth phrases - the punters at large sporting events, or in the pub, or at the concert or wherever don't sing/hum/whistle the flute part.

They sing the chorus...'cos it's got y'know...words.

That's the hook.

If they are going to spank them for 60% of the profits for the flute line, imagine how big the payout would be if Men At Work had lifted the chorus?

The proportions seem a bit off to me.

Cheers,
Tim
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Old February 6th, 2010, 07:21 AM
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Default Re: Kookaburra Sits in the Old Gum Tree...

Quote:
Originally Posted by Tim Halligan View Post

If they are going to spank them for 60% of the profits for the flute line, imagine how big the payout would be if Men At Work had lifted the chorus?
100%
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Old February 6th, 2010, 07:53 AM
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Default Re: Kookaburra Sits in the Old Gum Tree...

well then, take the 'unimportant' 'no one hums it' STOLEN line OUT
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Old February 6th, 2010, 09:27 AM
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Default Re: Kookaburra Sits in the Old Gum Tree...

Quote:
Originally Posted by weedywet View Post
well then, take the 'unimportant' 'no one hums it' STOLEN line OUT
Two things:

1. I didn't say it was unimportant. I said it wasn't the bit that the punters sing along with.

2. You can't take it out...the record has been made. By all means say that it shouldn't have been put in, but that horse bolted about 30 years ago.

Cheers,
Tim
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'Sucks' is always conducted better than 'Rules'. - Pimp-X wisdom


Never underestimate the power of stupid - Blackie C (RIP)

Ego and talent seldom go hand in hand... Talent and humble on the other hand... - Zoesch

Weedy ignores this simple bit of glaring obviousness because he is an "ELECTRIC BASS GUITARIST"(coughcough)
and views the kick drum as a "bass riff rhythmic pattern suggestion generator" - Slipperman
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Old February 6th, 2010, 09:51 AM
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Default Re: Kookaburra Sits in the Old Gum Tree...

yes, but the point is we've ALL been there I suspect where someone has the bright idea to quote or reference some other record or song... and you HAVE to ask yourself if it's legal and if it's worth what it's going to cost


they made a determination and WERE aware of the lift

they now pay the consequences

I don't agree that you can ever say what's important even to 'the punters'
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Old February 6th, 2010, 11:51 AM
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Default Re: Kookaburra Sits in the Old Gum Tree...

Totally with Weedy here.
If it's not important why is it there ?
The issue of claiming it this late smells bad, especially since the author has died and won't see any benefit in the case. But nevertheless, imagine if the quote is your song. Doesn't matter how popular it is, on the contrary.

I often wonder how it works for stuff like the White Stripes riff off "Seven nation army" which has become an anthem at enormo football games, concerts and huge festivals in Europe. It's a spontaneous crowd thing, and I'm guessing Jack doesn't get a part of the action even when it's a major event televised across continents such as the football world cup.
But if someone "quotes" it in a song in 20 years, why shouldn't Jack get compensation ?
"Happy Birthday to you" is not public domain and apparently continues to make Warner-Chappell an annual bundle of 2 million $.
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