[LINK] "Men at work" up a gum tree

[Roger Clarke]

At 22:40 +1100 4/2/10, Jan Whitaker wrote:
>I went looking for sheet music of both songs, to see what the actual
>melody line is, but didn't have any luck.

It wasn't the melody.  It was a flute-riff, two bars long.

The two bars are reproduced in paras. 70 and 76.

339.  ... the findings I have made do not amount to a finding that 
the flute riff is a substantial part of Down Under or that it is the 
"hook" of that song.


Here are my quick, mouth-agape, extracts from the judgement:

http://www.austlii.edu.au/au/cases/cth/FCA/2010/29.html

1.  "Kookaburra sits in the old gumtree" ("Kookaburra") is an iconic 
Australian round, written and composed in 1934 by Miss Marion 
Sinclair. It is a short musical work, being described and analysed 
for the purpose of this proceeding as consisting of only four bars.
http://en.wikipedia.org/wiki/Kookaburra_(song)
As Sinclair died only in 1988, copyright will persist in it for most 
of the present century.

2.  Two of those bars are reproduced in the 1981 recording of another 
iconic Australian composition, the pop song "Down Under" performed 
and recorded by the group Men at Work. The two bars are a part of the 
flute riff which was added to Down Under after it was first composed.

11. The [in the end, key] issue is whether, if I am of the view that 
there is the requisite similarity, the bars of Kookaburra which are 
reproduced are a substantial part of that work. That question is to 
be determined by a quantitative and qualitative consideration of the 
bars which are reproduced.

22. Mr Greg Ham, who added the flute riff, was not called by [either side].
But:
211. Mr Ham's affidavit contains an admission that his aim in adding 
the flute line was to try to inject some Australian flavour into the 
song.

213. [The litigant's claim is] to a percentage interest of 40% to 60% 
of the work.

214.  What seems to me to be important in the present part of the 
case is the inference that flows from the failure to call Mr Ham. It 
is trite to say that I can infer that his evidence would not have 
assisted the respondents' case. But it is also open to me to infer 
that Mr Ham deliberately reproduced a part of Kookaburra, an iconic 
Australian melody, for the purpose and with the intention of evoking 
an Australian flavour in the flute riff.
215.  For present purposes it is sufficient to say that Mr Ham's 
reproduction of the relevant bars of Kookaburra reinforces the 
finding of objective similarity. That is the real significance of the 
failure to call him.
216.  In my opinion, it is appropriate to draw the inference that Mr 
Ham deliberately included the bars from Kookaburra in the flute line 
for the purpose referred to above.

226.  It is true that Kookaburra is a short work and that it is not 
reproduced in Down Under as a round. But it was not suggested by the 
respondents that Kookaburra is so simple or lacking in substantial 
originality that a note for note reproduction of the entire work was 
required to meet the "substantial part" test.
227.  Nor could any such submission be sustained. The short answer to 
the qualitative test is to be found in Mr Hay's performance of the 
words of Kookaburra to the tune of the flute riff in Down Under. In 
my opinion, that was a sufficient illustration that the qualitative 
test is met.
228.  The reproduction did not completely correspond to the phrases 
of Kookaburra because of the separation to which I have referred. But 
Mr Hay's performance of the words of Kookaburra shows that a 
substantial part was taken.
229.  Moreover, although the question of quantity is secondary to 
that of quality, it is worthwhile noting that two of the four bars or 
phrases of Kookaburra have been reproduced in Down Under (or 50% of 
the song).

237.  [Re the QANTAS ad] I do not consider that the quotation of the 
second bar of Kookaburra constitutes, without more, the reproduction 
of a substantial part of the song.
240.   So too, in my opinion, [the evidence] does not establish that 
the ordinary reasonably experienced listener would recognise the 
second bar.

339.  ... the findings I have made do not amount to a finding that 
the flute riff is a substantial part of Down Under or that it is the 
"hook" of that song.


Conclusion:

The law, or the judge, considers any extract that conveys an allusion 
to a previous work to be a copyright infringement.  The law, or the 
judge, is an idiot.


-- 
Roger Clarke                                 http://www.rogerclarke.com/
			            
Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
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mailto:Roger.Clarke at xamax.com.au                http://www.xamax.com.au/

Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW
Visiting Professor in Computer Science    Australian National University