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

[Philip Argy]

Your  conclusion is unfair to the judge, because you omitted Dr Ford's
evidence recited in para 178 that the "the melodies in the relevant bars do
not merely resemble each other, they are note-for-note the same" - that's a
pretty strong allusion!

As I commented yesterday, the fact that a substantial part of a four bar
song is embodied in a much larger work does not lead to the conclusion that
the damages will be substantial in % terms because the judge has already
noted that the hook of Down Under was NOT the hook of Kookaburra and that
the flute riff was not part of the original composition.   I'm guessing 1%
or 2% of gross royalties received by the composers could be awarded (EMI was
cleared of any misleading conduct) which might still be a large amount
because of Down Under's success but I doubt it will be fatal to anyone.  The
legal costs could exceed the damages, especially if the judge takes the view
that the failure to call Ham made the case last much longer than it
otherwise might have if he'd attended and fessed up. 

Philip

-----Original Message-----
From: link-bounces at mailman1.anu.edu.au
[mailto:link-bounces at mailman1.anu.edu.au] On Behalf Of Roger Clarke
Sent: Friday, 5 February 2010 06:52
To: link at anu.edu.au
Subject: Re: [LINK] "Men at work" up a gum tree

[-snip-]

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/
			            
[-snip-]