Men at Work vs. Kookaburra: How many other copyright land mines are out there?
A couple years ago, the Australian quiz show “Spicks & Specs” asked its panelists to name the Australian folksong that could be heard in a popular hit single that was first released in 1979. The answer: “Kookaburra Sits in the Old Gum Tree,” in the flute riff of the Grammy-winning band Men At Work‘s hit single, “Down Under.”
That quiz show prompted Larrikin Publishing, who bought the copyright for the now 68-year-old folk song after its composer’s death in 1988, to sue for copyright. And yesterday a Sydney judge declared yesterday that the 11-note flute riff did indeed copy from the folk song, and will determine what royalties might be owed by the band.
Despite what some breathless news reports are claiming, damages will likely be limited — as CNN reports, the Larrikin is only claiming a percentage of revenues on Australian sales from the past six years, and the judge has already noted that he has not found that the flute riff is “a substantial part of Down Under or that it is the ‘hook’ of that song.” Still, it’s gotten me thinking about how many other copyright land mines might be out there, just waiting for someone (or some thing) to uncover the similarity between some riff and some other previous melody.
Musicians are always borrowing riffs and melodies from previous songs, from little riffs jazz musicians throw in as shout out to other songs to wholesale note-for-note copying. A few well-known examples include The Beach Boys hit “Surfin’ USA,” a note-for-note copy of Chuck Berry’s “Sweet Little Sixteen.” (Berry was granted writing credits to the former after a successful lawsuit.) The tune to the 1953 song Istanbul (Not Constantinople) is extremely similar to Irving Berlin’s Puttin’ On The Ritz. And the chorus to the 1923 hit “Yes! We Have No Bananas” is almost entirely made up of riffs from other songs.
That’s just a few examples that have come to people’s attention, but how many are out there that borrow from less obvious sources? How many are just waiting for a game show (or a new search engine) to copyright holders to a potential opportunity for some quick royalties? In the past few years it has become possible to search a music database for a recording by playing a snippit of a song or in some cases just by humming a melody. What is not yet possible is to automatically process an audio stream, tease out individual riffs and melody lines, and then find other earlier pieces that contain similar riffs and melody lines. But that kind of research is ongoing, and I have no doubt that it will be solved at some point. When that day comes, we will in essence be able to map out the genome of every music recording ever made, and from that we can lay bare the lineage of every song in history.
When that happens, how many other Kookaburras will we find?