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

[Jan Whitaker]

At 11:04 PM 4/02/2010, Stilgherrian 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's in the findings.
>http://www.austlii.edu.au/au/cases/cth/FCA/2010/29.html

Thanks

"The flute riff in Down Under does not consist 
solely of the two bars of Kookaburra. Indeed, 
where it first appears in the 1981 recording, 
immediately after the percussion introduction, 
the flute riff contains only the second bar of Kookaburra. "

For those who aren't musical, a 'bar' is ONE 
measure! A measure can be 2, 3, 4, 6 or 8 beats 
long [sometimes more, but rarely]. My guess from 
listening is that one bar is either 2 or 4 beats. 
It's arbitrary, but most likely 4. In this case, 
really 2 bars were used, but in the Down Under 
song, it's one because of the different notation used.

"But what must be borne in mind when considering 
the question of infringement is that, on each 
occasion when the flute riff appears in Down 
Under, it includes other notes which were not 
part of Miss Sinclair’s composition. "

!!!! They admit that this is similar, not exact in the summary information.

"The expert musicologist called by Larrikin, Dr 
Andrew Ford, agrees that the harmony of Down 
Under is different from Kookaburra. "
Even the plaintiff's own EXPERT says the harmony 
is different. Harmony determines things like if 
the chord structure is major, minor, diminished, 
augmented. Certain additional notes need to be 
present to tell. A single melody is difficult to 
determine major or minor. But in the flute riff, 
there are a bit more sounds with it to give it a slightly minor harmony.

"Inextricably involved in the question is a 
consideration of the similarity and difference 
between the musical elements of the two works 
including melody, key and tempo. "

Wrong. Key is always changeable -- always. It 
does NOT change the relationship of the tones in 
the melody and neither does tempo. So those 
elements are red herrings. I can play a tune fast 
or slow [tempo] and it's still the same song. I 
can play a song in the key of A through G# [12 
different keys] and it's the SAME bloody song. 
Note how the two versions of Kookaburra are in 
different keys: the first in F major, the second 
in D major. There is also no relevance to what 
sort of instrument plays the notes. That's like 
saying because a tenor sings Happy Birthday and a 
soprano does, in different keys, they are 
different songs. It all comes down to the notes 
on the page. Performance is irrelevant. And the 
guy sitting in a tree because that's where the 
koala is could be just that -- that's where 
koala's live. Maybe he's a magpie! Or a goanna!

"It is to be determined by the eye and the ear 
with the assistance of expert evidence: "
Bad way to determine. Music is mathematical and a 
code. It is reproducible. Only by seeing the 
actual notes and chords used should a 
determination be made. Anything else is useless.

Ah, I see the notes. It's 2/4, therefore 2 beats 
per bar, but could as easily been in 8th notes 
instead of 16ths, and therefore 4/4 meter as in the second printed music.

"I also accept his evidence that the “slur” is a 
distinctive element of the melody and rythym of 
Kookaburra which is replicated in Down Under. The 
slur may be something of a cliché in popular 
music but it was not suggested to Dr Ford that it 
was a mere coincidence in the present case. "

The slur is merely a performance technique in the 
case of an instrument [tongued or not on a wind 
or brass, bowed or not on a string] or an 
indicator of two notes applying to one syllable 
in a song. It's irrelevant to this determination. 
More smoke. And they can't spell rhythm either.

OK, enough of this. I don't think Colin Hays is 
the one they should have spoken to if he didn't write it.

The QANTAS part is interesting because the two 
bars ARE IDENTICAL, just transposed down a third. 
It is the SAME music. So if the use of two bars 
of the same thing is a breach, then surely the 
use of one of the same bars is also a breach. 
This judge is wrong. In fact, having the 
interposing bar in the flute riff makes the whole 
phrasing quite different, including the 
underlying minor key of the song. It's that 
interposed bar that sets the relative minor.

I think where they lost the case was not the 
above stuff, it was the affidavit by Ham that 
*he* wanted to make it more Australian. But what 
does that mean? Is one bar enough to mean it's a 
copyright infringement? Remember, changing the 
key can work both ways: so repeating the same bar 
transposed is still only ONE bar out of 8 in the original round.

I didn't read it all word for word. I just think 
the judge got it wrong. The Red Symons show this 
morning had heaps of examples of the replication 
of substantial parts of tunes, including shows 
like the Coodabeens on the ABC putting new words to whole songs all the time.

Jan



Melbourne, Victoria, Australia
jwhit at janwhitaker.com
blog: http://janwhitaker.com/jansblog/
business: http://www.janwhitaker.com

Our truest response to the irrationality of the 
world is to paint or sing or write, for only in such response do we find truth.
~Madeline L'Engle, writer

_ __________________ _