 The Clarinet BBoard
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Author: donald
Date: 2010-07-06 20:36
This case has been going on for ages but i guess didn't make the US news. The publishers (who were given the song as part of an estate- the original composer didn't have any issues with Men at Work) originally pitched for a very high percentage- 40% i recall- of all royalties, but this has gradually been pushed downward by the legal process.
The thing is- 1) the song is not quoted verbatim, the riff only "alludes" to the Kookaburra song (the melodic shape of a very small segment of the tune is in a different harmonic context). 2) the flute riff is part of the accompaniment and is not crucial to the song. It's just a bit of texture, the flute filling in between bits- the whole song could easily be recorded without this and still be successful. The flute player probably originally thought he was being clever by making his accompaniment reference a tune that was culturally iconic, in the same way that contemporary composers thought they were being clever quoting Mozart and Brahms in pieces commissioned for Clarinetfest '98.
dn
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Author: Chris P
Date: 2010-07-06 22:12
Did John Williams ever get royalties from Michael Jackson ('s estate) for using part of his Jaws theme in 'Heal the World'?
Former oboe finisher
Howarth of London
1998 - 2010
The opinions I express are my own.
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Author: Merlin_Williams
Date: 2010-07-07 03:12
Open that can of worms, and just about every film composer working now could be sued by the estates of Stravinsky, Holst and Orff!
Jupiter Canada Artist/Clinician
Stratford Shakespeare Festival musician
Woodwind Doubling Channel Creator on YouTube https://www.youtube.com/c/WoodwindDoubling
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Author: chris moffatt
Date: 2010-07-07 03:22
not much similarity to my ear, maybe one short phrase. I wonder how music could continue if we weren't allowed to quote - heck every number we play someone puts in a quote from some other song or piece. My guitarist friend tries to see how many places he can fit a quote from "in the hall of the mountain King" and the similarites between "lullaby of birdland" and "love me or leave me" just cry out to be paraphrased.......isn't this covered by some 'fair use' law?
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Author: mrn
Date: 2010-07-07 06:18
chris moffatt wrote:
> isn't this covered by some 'fair use' law?
Not in Australia. It was an Australian court that made the decision. "Fair use" is part of U.S. Copyright Law.
In Australia, they have something called "fair dealing," which is similar in concept, but unlike U.S. law, which is relatively open-ended ("fair use" was originally judge-made law in the U.S.), Australian law explicitly spells out the particular uses that are considered "fair dealing." Making an allusion to another musical work is not one of them.
This case might have come out differently in the U.S., where courts look at multiple factors when determining whether something is a fair use and there is more emphasis on the economic impact of the use in question on the original work as opposed to simply what *kind* of use it is.
Also, U.S. Copyright Law does not protect names, titles, slogans, and short phrases because such copying is considered "de minimus." I think one could make the case that the short melodic fragment Men at Work borrowed from Kookaburra, which is nothing more than a musical allusion (much like a literary allusion), is an unprotectable "short phrase." Suing Men at Work for making a brief (and, if I may say so, somewhat subtle) musical reference to Kookaburra is a bit like a hypothetical lawsuit brought on by Buddy Holly's publisher against Don McLean for using the phrase "this'll be the day that I die" in "American Pie." (borrowed from "That'll Be the Day," of course) I just don't know that it would fly.
That's not to say that a U.S. judge would *necessarily* rule differently than the Australian judge did in this case (anything's possible, so playing it safe is always good), but I think this outcome would be less likely here given the very different nature of the legal analysis to be applied in the two jurisdictions.
And that's fair dinkum...
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Author: Lelia Loban ★2017
Date: 2010-07-07 12:26
For people interested in copyright laws, there's a long thread continuing right now on the Klarinet e-mail list. Search the archives on this site under the message header,
Sheet music copyright
Lelia
http://www.scoreexchange.com/profiles/Lelia_Loban
To hear the audio, click on the "Scorch Plug-In" box above the score.
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Author: rsholmes
Date: 2010-07-07 15:54
Quote:
Check out the story at this address:
http://www.smh.com.au/entertainment/art-and-design/one-of-these-paintings-is-by-a-17thcentury-dutch-master-
Link doesn't work...
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Author: chris moffatt
Date: 2010-07-07 16:38
The flutist (or flautist) said he didn't intend to copy the kookaburra song and wasn't aware that he had; he just wanted something "australian". If it was plagiarism it's really hard to hear that it was.
I think this is a really bad precedent - is every sequence of notes in every copyrighted work now off-limits even if copied accidentally? I don't see how a musician could possibly stay out of trouble in Australia.
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Author: Chris P
Date: 2010-07-07 17:24
The first time I heard the kookaburra song was on an episode of Doctor Who (the one with the 2012 Olympics) and was trying to place it, then much later on heard on the news Men At Work were getting done for using part of it.
Former oboe finisher
Howarth of London
1998 - 2010
The opinions I express are my own.
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Author: skygardener
Date: 2010-07-07 22:01
In situations like this, who judges the similarities?? Do the courts request third party musical expertise to analyze and claim that the melody is or is not similar??
Ps. If it really is so similar, why did it take 20+ years to notice?
Post Edited (2010-07-07 23:02)
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Author: ned
Date: 2010-07-08 04:22
''Link doesn't work...''
rsholmes,
Try a search engine and use the keywords: wynne, prize, dutch, master, copy...........there's bound to be a link. This story was in "The Sydney Morning Herald'' earlier this year.
It's very relevant to this post, albeit in another genre of art.
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