Friday, February 5, 2010

Down Under and Anal

The Federal Court's decision that the flute riff in the classic Australian song Down Under breaches the copyright held by Larrikin Music in the iconic Australian folk song Kookaburra Sits in the Old Gumtree is quite simply appalling.

The judge found that a 'substantial part' of Kookaburra was swiped by Greg Ham for his solo, and that substantial part added up to two bars, yes, TWO BARS! Given that Kookaburra, in total, adds up to four bars, then 50% must be considered substantial.

Now no-one could object to that: 50% of anything is a substantial part.

The problem is this: when any piece of copyright content is short and brief it would be almost impossible to quote even the smallest part of it without running up against the concept of substantiality. And quoting and referencing prior works is what so much of creative output is all about. New works build on the rich legacy of others - the musical, literary, filmic, performance traditions in which they live and breathe. That tradition is enriched and extended by borrowing, tribute, echo, reflection, criticism, satire, etc.

Ham, a classically trained musician, wanted to introduce into Down Under some appropriate Australian references. Quoting two bars (remember, two bars) of a universally known and revered old Australian children's song, written in 1934, was reverential and enhanced the overall wittiness of the entire Down Under song. As well, the two bars were only a small part of the solo and an even smaller part of the song.   

The judge seems to me to have missed the logic of this. It would have been impossible for Ham to have quoted less than two bars (eg, one bar) and still achieve his valid purpose - the small and enriching quotation, that had to be recognisable. 

If referencing an insubstantial part therefore of such a brief piece of content is impossible, then surely the concept of substantiality in this context is bereft of meaning. 

The judge has delivered a decision based on an empty technicality. It also runs totally counter to the current musical culture of sampling and remixing, and for this reason alone will stoke the fires of disaffection that are bringing the whole notion of copyright into disrepute, particularly amongst the young.

What a lost opportunity. An opportunity to be wise.


Tess said...

Maybe he was biased by his own view that that MAW song is really annoyingly catchy. Or maybe some ex-girlfriend in his youth left him for Colin Hay. You never know... perhaps it was a revenge judgment! :)

Andrew Wilkins said...

Couldn't agree more, Peter. It's a ruling that competely ignores how so much of music is made - by referencing other music. Hay and Co must be sick in the stomach they've been singled out for this on the only work they made any money. Bad, bad judgement!

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