Band are victims of obstinate rule of law

Intellectual Property in the Land Down Under – Helen Razer  – The Age February 6, physiotherapist 2010

Decades ago on a cold winter night, glands a couple of blokes sang a song in a Richmond Hotel. More than 30 years have passed since Melbourne band Men At Work debuted the song Down Under. Time, age and beer may have dulled the memories of those in attendance, but composer Colin Hay remembers it very well.

Lately, he has been required to recall the details of composition in even keener detail. The songwriter has just emerged from the Federal Court in which he unsuccessfully defended his band’s sum authorship of the work.

At issue is the short flute interlude in the recorded arrangement of Down Under. Applicant Larrikin Music asserted that these few seconds of sound replicated the childhood song Kookaburra Sits in the Old Gum Tree.

The Men At work song, which won its performers a Best New Artist Grammy on release in 1982, has enjoyed colossal fame. Fans of popular music worldwide loved its bobbing rhythm and odd references to Vegemite, Kombi Vans and chunder.

But in recent weeks it drew a more critical audience.

Arguably, the law as it is written in Australia obliged Justice Peter Jacobson to find in favour of the Kookaburra.

By the respondent’s admission, the nursery rhyme does appear unintentionally in the hit song. That the folk ditty is referenced in Down Under is no great surprise to anyone with a radio and a bit of time on their hands. What is surprising to many of us pop-music consumers is the obstinate rule of the law.

Kookaburra, to which the applicant has held rights since shortly after composer Marion Sinclair’s death in 1988, is part of our national folk culture. Children still sing it today, presumably without having to first seek written permission from Larrikin Music. When I was a child, my peers and I sang, “Kookaburra sits on electric wire, jumping up and down with his pants on fire.” Academics would call this practice of retooling “cultural appropriation”. We just thought it was good fun.

And it was good fun, too, when Men at Work did it. Like the shibboleth “chunder”, the Kookaburra riff was a wonderful in-joke to those few Australians who recognised it at the time. Here was a song that became an international smash. It did incalculable good for Australian tourism and provided a rare boost to our national identity.

But Justice Jacobson had to find in favour of the owner of a dead woman’s property. He said, “I would emphasise that 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”. So, the immense success enjoyed by Men at Work had little, or possibly nothing, to do with this tiny musical detour. But as an “objective similarity” between the structure of a nursery rhyme and a little bit of a popular song could be detected, the applicant may be compensated.

In a statement, Hay suggested the action amounted to “opportunistic greed”. That’s one possible reading. Another is that this case highlights shortcomings in our intellectual property law.

The history and the advancement of all artistic endeavour rests on borrowing; on using and changing leitmotifs. While the small contested portion of the song Down Under is certainly inspired by our Australian nursery rhyme, it is not a ”rip off”. In the traditions of jazz, it’s a ”riff”. It’s not a violation of rights. Unless, of course, we now live in a world so obsessed by content control that six-year-olds must apply for the right to sing “Happy Birthday”.

The applicant argued successfully to Justice Jacobson that a work of cultural reference could be broken into little mathematical bits. In short, art can become nothing more than the sum of its parts.

But the value of Down Under can’t be reckoned so readily. Perhaps Men at Work should seek compensation for unpaid works to Tourism Australia to pay for an appeal.