Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

In 1934, Marion Sinclair wrote a short tune, “The Kookaburra Song”, for a Girl Scouts competition. The tune is a short, 4-bar melody intended to be sung as a round (a round is where different voices sing the same melody but start at different points, so that the melody forms a counterpoint with itself – “Row, Row, Row Your Boat” is a well-known example). The song was successful, and has since grown to enjoy folk-like status within its native Australia.

Almost fifty years later, the Australian band Men at Work recorded the song “Down Under” for their debut album Business as Usual. That song went on to be an international hit, in the process earning millions of dollars and becoming an iconic song of Australian pride and identity. On February 4 2010 Jacobson J of the Federal Court of Australia found that “Down Under” infringed the copyright in “The Kookaburra Song”, essentially finding that Men at Work were plagiarists (the decision can be found here). While the song tells of men who chunder, according to Jacobson J it would seem they were really concerned with plunder (the rhyme is just too awful to resist!).

In both Australia and Canada the law of musical copyright infringement, in the sense of plagiarism rather than outright reproduction (such as in filesharing), comes from the English case Francis Day & Hunter Ltd. v. Bron. It was established that there are two elements necessary for a finding of infringement: substantial similarity between the two works (or of a substantial part), and a causal connection. The “causal connection” requirement reflects the fact that copyright is only infringed when there has been actual copying – if two people, both on separate deserted islands, were to independently come up with the same song, both would have valid copyrights in their works and neither would have infringed on the copyright of the other. The infringing part of “Down Under” is the flute riff performed by Greg Ham that opens the song and recurs twice, and Jacobson J had no difficulties in finding this causal connection. “Kookaburra” was, and continues to be, well-known in Australia. Particularly damning, though, was the testimony of Colin Hay (one of the songwriters and a party to the suit), which led Jacobson J to find that “the flute riff played by Mr Ham while sitting in the tree [in the music video] was a direct musical reference to Kookaburra, although he did not concede that it was an obvious reference.” Furthermore, Greg Ham himself was not called to testify – a failure from which Jacobsen J drew negative inferences.

The question of substantial similarity is more controversial. Such evaluations must always involve a heavily subjective element since music is a fundamentally non-referential form of expression; it’s not quite like, for example, text, where establishing objective similarity is relatively straighforward.  This is especially true in cases of plagiarism such as this, where the question isn’t one of literal reproduction but rather one of similarity. The decision is helpful in that it actually reproduces the relevant portions in musical notation. Jacobson J outlines numerous significant differences between the two songs, including rhythm and harmony, ultimately finding that two bars of “Kookaburra” are referenced. But the analysis is focused on identifying similarities, not differences. A televised Australian news report  compares the relevant sections; have a listen and judge for yourself.

The musical analysis in a case like this proceeds from a fundamentally atomistic conception of music, in which the work is dissected into discrete elements which are then compared to discrete elements from another work. From a historical perspective, I would suggest that this is highly problematic. The reality is that music, perhaps more so than any other art form, works with limited material (the 12 chromatic pitches of the western scale, of which the overwhelming majority of popular music draws upon the 8 diatonic pitches of the major/minor system of functional tonality).  “Similarities” are easily found.  Moreover, quotation and borrowing has a long tradition within even the most valorized musical traditions.  For example, the western classical tradition is often held up as the most prestigious body of works and as the canon that most emphasizes technical accomplishment and originality. Even this tradition, however, relied heavily upon musical borrowings and quotation, practices which were pervasive in even the 19^th-century tradition, which heavily emphasized a transcendental conception of music authorship which privileged originality. Borrowings (including what we today would call outright plagiarism) was an accepted part of musical production stretching back to the dawn of the western tradition – an excellent example is the parody mass.  Handel will serve as a typical example – he frequently quoted (to be generous) at length from his contemporaries. This was not perceived as a problem during his lifetime, but only emerged as a critical issue in 19^th century scholarship. For an excellent introduction to the great importance of musical borrowings in the history of the western classical tradition, I would recommend Olufunmilayo Arewa’s article “From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context”.

In the Canadian context, should this reality affect the legal reasoning in such cases? I would suggest that it should. In CCH Canadian Ltd. v. Law Society of Upper Canada the Supreme Court strongly emphasized the importance of considering the purpose of copyright law, which was identified as: “…to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.” It’s hard to say how Canadian courts would treat a case like this, since there have been very few such cases and none have gone to an appellate court (see Gondos v. Hardy, Grignon v. Roussel, and Drynan v. Rostad). The problem here is that there is a real risk that the sort of atomistic musical analysis used in comparing “Down Under” and “Kookaburra”, which would identify objective similarities in a great deal of music, past and present, undermines the public’s interest in encouraging the creation and dissemination of new works. The decision sends the signal that musicians need to be on constant guard of even alluding to other works, even unconsciously.  This is simply incompatible with the actual nature of musical composition. Denny Burgess, the director of the Australian Songwriters Association, for example, observed that, “’Every songwriter, to a larger or lesser degree, is influenced by pieces of music, riffs etc. that they have heard before, and they are bound to come through in the songs … People will always pick up similarities, but it is a very subjective thing.”

It should also be noted that the decision has drawn intense criticism from the public. Here’s a fairly polite example, but discussions on the topic are often filled with disgust at the decision and the entire legal profession. These facts don’t lend themselves to popular sympathy – the original song was written eighty years ago, the original composer died twenty years ago and wasn’t active in enforcing the copyright during her lifetime, and the current owner boasts of having paid only $6100 for the rights while generating hundreds of thousands of dollars in royalties.

The parties will return to court on February 25 to assess damages. Larrikin Music is asking for 40 – 60% of all the royalties generated by “Down Under”, which would easily amount to millions of dollars. Just how much those two bars are worth will likely prove to be as interesting as the finding of infringement itself.

Posted in Copyright, Infringement, Music Industry