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Point of View 

We asked renowned Australian musician
and music educator, Andy Firth
to answer the following question...

Andy Firth

March 2010

The Question:
Is Australia facing a "dark age" of copyright litigation?

Response by Andy Firth share this - email, favourites, social bookmarks and more

After the recent decision to allow Larikin to fleece Men at Work for using a few notes from a Welsh folk song, "Dacw ti yn eistedd, y 'deryn du", ("There you sit, blackbird", which is probably where the "composer" of Kookaburra got her melody from), has Australia entered a "dark age" of publishers trying to recoup the declining sheet music sales from composers instead? I mean to say, what happens now if we use a musical quote in a solo on a recording or inadvertently use the same 5 notes as another popular melody? Surely commonsense and fair play should prevail in Australian law? Obviously not. If we record "Danny Boy" we can get sued but if we call it "Londonderry Air" or "Air from County Derry" we are using a public domain work. Surely the fact the Men at Work used a PD Welsh melody and not the words penned by Marion Sinclair for "Kookaburra" means that they did not violate any copyright owned by Larikin? How can the Paramount Pictures theme not be considered to be the first motive from John Williams' "Star Wars"?
Why is it that publishers are now able to buy Australian works of National heritage and significance from Public National Libraries and other tenders?
Surely there has to be a point where we say this far and no further to big business with the scent of greed and money in their nostrils? I am interested in hearing from my astute fellow Aussie musicians about these issues. I for one, will never trust the Australian system of "justice" again. Perhaps it's high time we just accepted the fact that we are now more and more like America each passing day and there's nothing we can do about it. As I write this, the spell check is underlining English spellings as incorrect- Perhaps this is the first time in our short but colourful musical history when we will have to realise that only money and "who you know" matters when it comes to our music industry. Talent is a bonus but obviously not an essential quality to succeed in the music game. As Australian performers and composers, how do we fight back? Should we now have wills drawn up that state that on our death that our works can never be sold-off to or tendered to music publishers? I, for one don't really want my relations profiting from my works. My wife and family will get any royalties generated after my death but after they pass on, I would like my works to become PD so that future Australian musicians can freely use and enjoy them. This ensures that any of my next generation relatives will have to develop their own talents and work for a living. Publishers will only give you a 5% or 10% cut of your work in any case and for the most part, in my experience, don't push, advertise or care whether people buy your music anyway. Self-publishing is the way to go, I think. Why is it that we allow publishers to grow fat and rich from our art works for 100s of years? "O Sole Mio" (written in the 19th C) is now in copyright until 2042 because a judge awarded the rights to a surviving family of the composer's. "Waltzing Matilda" for many years was owned (and still may be) by an American publishing company and yet it was derived from a Scottish folk tune apparently-"Craigielee".

Where is this all heading? Will we get sued for writing a tune based on a major scale because others have used the same three notes? Don't be too quick to laugh. I remember scoring a song for an advert in the '90's and it started with the solo trumpet playing three chromatic minims. We were told that we had to change the intro because it "evoked" the Artie Shaw version of "Stardust" too much! I'm serious! In the end, we had to change it. Strange-but true!

I look forward to your views and opinions on this issue that is clearly going to, or is, affecting us all.



2010 Andy Firth

Have Your Say
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If you would like to find out how this legal decision affects you as a musician, songwriter, performer, producer, publisher, etc., there is a seminar on the Kookaburra case decision presented by Arts Law and the Music Council of Australia on Thursday 18 March at 6pm at The Gunnery Building, 43-51 Cowper Wharf Road Woollomooloo. Leading lawyers and the director of Arts Law will explain the recent court decision involving the Kookaburra song and Men At Work's Down Under and what the decision means for musicians and the arts community.
Go to http://bit.ly/bGzgzP for more info.

Posted by Greg Foster on Sunday 14 March 2010

Thanks for article. What an outrageous judgement. Totally unfair. A few notes in a lick is not "ripping off a song or a tune". I hope it is appealed.

Posted by Billy Field on Monday 1 March 2010

Hi , as a composer of original tunes I have never consciously written in other people lines into my tunes , in saying this I have had people say that this reminds me of that tune. When you think there are only 12 notes in music to start with you will always have sort of thing popping up.

Posted by John Leigh Calder on Monday 1 March 2010

This is an interesting point, and it invoked the disclaimer often seen in books where nothing may be used elsewhere EXCEPT for the purposes of reviews etc - where short excerpt may be used. Surely that same concept should be applied to musicians using quotes in their solos? It's probably not a good idea to build quotes into a personal composition for publication and recording though, and in any event that, for me, would smack of lack of imagination. Speaking of which, I know a Melbourne clarinetist who is an inveterate 'quoter' and whose favourite bit is the opening phrase of 'Entry Of The Gladiators' - which pops up many many times in one of his gigs. I read somewhere about the Dave Brubeck group, where they apparently used quotes in their solos to communicate the 'feel' of where they were going. Unknown to Brubeck was that Paul Desmond had a private bet with someone in the audience as to how many times he could slot in a quote from 'Try A Little Tenderness'. Desmond did it quite a few times and each time he did it Brubeck backed off on the volume. At intermission Brubeck told him 'I couldn't get it any quieter, but you still kept on at me!' So Desmond told him the truth, and apparently there was much merriment. Andy says that 'only money and "who you know" matters when it comes to our music industry.' How very true! And again: Talent is a bonus but obviously not an essential quality to succeed in the music game. Another great truism! Some years ago in the motel after a late night gig when the liquor was flowing, a couple of us started to make lists of silly bands. One of them was comprised of 'band leaders who couldn't play their instruments' and it was quite surprising how that list grew. Upon reflection though, most of them were very successful... I do agree that the concept of 'intellectual propery rights' is a very grey area, and it's such a pity that the legal profession can profit from it in these cases. So what is the jazz musician to do about all this? Just carry on playing good music and make sure that it's all original I guess. As to royalties, I've never made much from them at all, as many of the recordings I've made have been done on a session fee and promise of royalties 'when the costs are covered'. CD sales (except on the gig) never seem to be high enough to cover the costs however. Possibly because of the high number of audience members making their own recordings at jazz festivals - which is a whole new thread itself.

Posted by Eric Holroyd on Monday 1 March 2010

I think the important question here is "Why do publishing companies buy iconic pieces of music?" Is it really to protect them from improper use? I think we all know that it is more to do with the commercial value and potential for making money when someone honours it's cultural significance by including it in a performance. The ruling in the Larrikin v Men At Work case sets a dangerous precedent condoning greedy, opportunistic claims against Australian musicians in the future.

Posted by Greg Foster on Monday 1 March 2010

The copyright act under which Men at Work got sued is supposed to protect the works of creative people from being stolen. In this instance of course the exact opposite seems to have occured; the creative artist has been successfully sued by a company that essentialy owns a piece of paper giving them ownership of an already plagarised tune. It is a tricky case though as the melody does form the 'hook' of the song. The case against Men at Work was also weakened by live footage of the band singing 'Kookaburra sits in an old gum tree' over the hook in live performance leaving no doubt as to its origin. However, I still think it's a disgrace that Lariken won a so called "victory for the little guy".

Posted by Gavin Pearce on Monday 1 March 2010

The entire world of intellectual property rights is in chaos, the idea of personal freedom is being trashed, music's perceived value to in the public perception is nothing, so forgive my lack of surprise or disgust at the publishing companies grasp. (sorry just feeling bleak following the death of the australian music industries most optimistic soul)

Posted by Kirke Godfrey on Sunday 28 February 2010
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