Thursday, February 04, 2010

Kookaburra gets free lunch

Kookaburra by Pants

Everyone's talking about the shock verdict in the Down Under copyright infringement case today. F Marshall Stacks covers the whole silly business very thoroughly here. As FMS points out, the 1932 song Kookaburra Sits in the Old Gum Tree, comprises an original lyric set to an old Welsh (anon)  folk tune and that tune is in the public domain, as it was in 1932. The judge, however, accepted Larrikin Music Publishing's ownership of the tune and was therefore able to find Men at Work had infringed copyright by quoting a few bars in a sub-melody. Not the main melody, mind, but a small section of an accompanying motif. 

There are a number of problems in this judgement for composers. Quoting from existing musical sources is an established tradition that goes back centuries. There was a time when composers where quite flattered by being imitated. It's right that individuals' ideas should have protection under law from the profiteering activities of others but this is a cynical case compounded by a spurious judgement which could have dangerous consequences.

Copyright rules are very clear. If you're intending to quote a recognisable section of music that is copyright protected, you must get permission and pay an agreed royalty for its use. Quoting is a form of shorthand. The suggestion of another piece of music brings with it its own musical references. It's only right that if you use someone else's work to add value to your own, there should be adequate compensation. 

But it's also possible to quote innocently, either by reaching into a subliminal memory or by accidentally stumbling upon the same sequence of notes as someone else has. Here the quote seems to fall into the first category. It's a tenuously small sample from a piece of music that is embedded into every Australian's subconscious. Perhaps the hint of Kookaburra does contribute to the song's Australian feel but you can't copyright a mood, surely. 

This case was brought retrospectively - thirty years after the Men at Work song was released and twenty years after Larrikin Music Publishing had acquired the copyright. In the interim, the song generated a lot of money. Larrikin is claiming 40-60% of royalty earnings. They're unlikely to get anything like that, but plenty of composers who are of the type that just wake up in the morning with a tune in their head have cause for worry. Do they have to start socking away 50% of their earnings in case someone matches up a few dots just as they're about to retire? It's an incredibly cynical application of a law that is designed to protect the rights of poor ditsy people who sit in their rooms all day eating peanut butter sandwiches and making up songs for our entertainment.

And finally, there's the vexed question of whether copyright can apply to material that has been in the public domain but then rebundled into a new work that qualifies as original. As FMS points out, the original content of Kookaburra was the lyric, none of which was used by Men at Work. The tune itself should not be eligible for protection. Has the judge inadvertently created a mechanism for locking common material into new ownership arrangements? If I decide to make a recording of Beethoven's Moonlight Sonata, do I then have to pay a share of the royalties to Alicia Keys?