Kookaburra Sits In The Old Gum Tree. Men At Work Down Under.

Australian Copyright Law needs to be reformed so it cannot be manipulated by greedy, vexatious litigants using technical ignorance of the subject area to unjustly effect an outcome.

I refer to the recent case of Copyright infringement and Trade Practices breach involving Larrikin Music and EMI regarding:

Kookaburra Sits In The Old Gum Tree. Men At Work Down Under.

 Technical issues

 It is granted that the same three notes and rhythmic values in Kookaburra’s opening phrase match the introduction flute riff’s fourth phrase. This is made clear by printed music that shows only the melody and rhythm. It also shows that the flute’s second variation riff contains the notes and similar rhythm to the second Kookaburra phrase. However, one cannot base the case against Men At Work’s use of the Kookaburra fragments on the print music transcription alone because it is only a visual representation of what is heard. Be very clear about this: music is experienced aurally, not visually.

Specifically, what is missing from the print music is the issue of harmonic embedding, a point not elaborated upon by the musicologist. He makes a comment about the “different feel” in which the Kookaburra notes are played. Let us ask more about what this means because this affects the way the flute riff is heard.

 1. In DownUnder, the tempo is significantly faster.

2. The harmony of the tune is different at precisely the flute riff. The verse harmony, in which the flute riff is embedded in Down Under, is in a minor key. Kookaburra is in major key throughout. In diatonic Western music these are two contrasting harmonic structures.

3. The intervallic relationship between the notes and the chords underneath is different in the two songs. For example, in Kookaburra the first note is in a highly consonant major 3rd relationship to the chord. In Down Under that first note is in a major 7th relationship to the chord which is a dissonant interval. This is crucial evidence, because when one hears a short melody in a different harmonic context – even with a musician’s ears – it is heard and understood differently. However, if it is isolated, or pointed out, it can be recognised. It stands to reason that the Kookaburra musical quote became the question on a quiz show because it calls upon specialist listening skills.

 To further obfuscate the reference, the Kookaburra fragment always appears as the secondary or “response phrase” within the flute riff.  I understand that the primary or “question” phrase of the flute riff is an original melody.

 The point is that if the Kookaburra reference is so weak in its power of recognition because of how harmonically decontextualised it is in Down Under, and how buried it is when played as a secondary phrase, can it really be said to be infringing the Kookaburra copyright? It is hidden, but rather in the manner of a clever musical joke. The flute riff contributes to the song by the power of its “hook”, however, the Kookaburra melody used in the flute riff is not the secret to the success of the hook because the cultural reference is too obscure.

 While the proportion of the Kookaburra material used in the flute riff is high it is only by relying on print music alone,  that is, without an harmonic context, that the case can be argued that a substantial quantity of the whole of Kookaburra was used in Down Under. An exceptional consideration in this case is that the total copyright material of Kookaburra is small to begin with. These are structural matters which have not adequately been addressed by this case, and indeed, they have been used to advantage by the litigants.

 The Quantity factor is only a part of the overall copyright infringement landscape, not the overriding issue. I repeat that music is aurally experienced, not read. The law needs to take this important fact into consideration Copyright law insists on ignoring the relationship of the melodic material to its harmonic context and it needs to take stock and be better informed about musical structures. The judge’s finding has blindly ridden rough shod over some basic tenets of the human perception of music. As a professional musician I was aghast at how the plaintiff vexatiously pursued this claim. Those of us who have specialist musical knowledge are aware of how the case was argued to take advantage of an ignorance of technical musical issues. It was particularly galling to see how a judge could be duped by lawyers.

 Cultural Issues

 The lyric content of Down Under explores the theme of a dislocated Australian youth (a backpacker travelling the world) clutching at a handful of everyday Australian icons to represent his distant culture to Old Worlds of Europe and Asia Unlike the lyric content of Australianisms which turned the song into an anthem, the aural reference failed to connect as the vast majority people couldn’t hear the Kookaburra theme in Down Under. After it being pointed out some people still struggle to identify it.

Thank you for your time in reading. We need to change Australian Copyright Law to reflect music as it is heard. Additionally, a statute of limitations needs to be put in place.


~ by aspergine on February 10, 2010.

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