In a move which has sparked panic amongst the music industry, Sydney’s Supreme Court has ruled that Australian Band Men At Work copied one of the most recognisable parts of their biggest hit – 1983’s “Down Under” from a 1930s children’s song – Kookaburra Sits In The Old Gum Tree” – originally composed by Melbourne Schoolteacher Marion Sinclair. As a result, the Band stands to lose up to 60% of the earnings generated by the song, which was used in the closing ceremony of the 2000 Olympics and has become an unofficial Australian anthem.
“In this case, Men At Work were accused of reproducing “a substantial part” of Mrs. Sinclair’s 1935 song. The Band themselves claimed that the distinctive Flute melody was added after the song was written but did admit to basing it on Sinclair’s work, describing it as “a musical accident”. The Judge in Sydney, however, did not agree.
“This is the latest in a line of cases which appear to be defining how far artists can legitimately go when creating songs which are “inspired by” or based on another source. It bears similarities to the high-profile copyright infringement claim brought by virtuoso guitarist Joe Satriani last year against Coldplay, whom he accused of using a melody from his instrumental “If I Could Fly” in the worldwide hit “Viva La Vida”, used to huge publicity by Apple in a campaign for the iPod.
In the UK, if copyright infringement can be demonstrated to the Court, then the usual award for Claimants would be either damages to the value of the royalties which the Artist would have made had they done a deal with whoever has allegedly copied their work or an “account of profits”. This would potentially see all of the profits made from a song being handed over. As any good litigator will tell you, taking a case to trial is a calculated risk. In fact, pursuing infringers of your copyright and deciding how far to push a case is a very complicated exercise in risk management. Any Judge, no matter how skilled, will make a judgment based on the case before him and there are very few cases where you can guarantee that they will find in your favour.
Music Copyright cases are notoriously tricky and the UK test for whether or not a song has been copied – whether or not a “substantial part” of the original has been used, is a matter of fact in each case. The position is very similar in Australia. Unless the songs in question really are identical or your release contains a sample of another song which hasn’t been cleared and you’re willing to gamble the profits you make on a well-known composition, then putting it out may be a risk not worth taking, especially in an industry where it’s increasingly difficult to turn a profit.
The last few years have seen some genuinely scary precedents set, all starting when George Harrison was found to have “subconsciously copied” an earlier song in his biggest hit “My Sweet Lord” and The Verve making very little profit from “Bittersweet Symphony” after failing to clear a sample from the Rolling Stones, who ironically found themselves accused of the same thing by kd Lang shortly thereafter.
If you are an Artist and your work has been copied, you may not be able to afford not to take action as a deterrent against further copying. You should always be willing to do so, but always willing to know how far you are willing to push your case and when to consider settlement. In this case, Men At Work fought the case to trial and lost in a major way. They used the melody from “Kookaburra” to, in the words of the Judge, give their song “an Australian” flavour which must now taste very bitter.