In 1932 music teacher Marion Sinclair had a flash of inspiration that resulted in the composition of "Kookaburra Sits in the Old Gum Tree" (hereafter referred to as "Kookaburra …"). Two years later the song won a competition organised by the Girl Guides Association of Victoria (Larrikin Music Publishing Pty Ltd v. EMI Songs Australia Pty Limited, 2009, paras.39-49). From its first performance in 1934 to the present day "Kookaburra …" has become a popular Australia nursery rhyme. Fast forward to 1978 and we find Colin Hay and Ron Strykert composing "Down Under", a song featured on the Business As Usual (1981) album, recorded by their band Men at Work. "Down Under" secured the number one chart position in America, England and Australia. Marion Sinclair died in 1988 and in 1990 Larrikin Music Publishing bought the copyright for "Kookaburra …" from the South Australian Public Trustee (Kontominas, 2009). On Wednesday, 26th September 2007 ABC TV broadcast a special children's special of its music quiz show "Spicks and Specks". (The episode can be viewed on YouTube - http://www.youtube.com/watch?v=IT8SHafGIpU.) "Spicks and Specks" host Adam Hill challenged teams to "name the Australian nursery rhyme this riff has been based on" before playing an excerpt from "Down Under". After some confusion Jay Laga'aia tentatively answered "Kookaburra sitting in the old gum tree?". Larrikin's managing director states that during the following day his "email and phone lit up with people asking: 'Do you know about this?'" (Te Koha & Hewitt, 2008). Following the revelation of the similarity between the two songs, Larrikin Music launched a suit against EMI, Colin Hay and Ron Strykert, claiming the flute riff in "Down Under" was appropriated from the melody of "Kookaburra …".

On 4th February 2010, Justice Jacobson, presiding in the Federal Court of Australia, concluded that Hay and Strykert had indeed copied a substantial portion of "Kookburra" and therefore infringed Larrikin's copyright in the song. At the time of writing damages are yet to be set, but Larrikin are seeking 40-60% of royalties earned from "Down Under".

This paper is concerned with the direction of copyright law and its role in such cases. Whilst Justice Jacobson's ruling is grounded in the black letter of the law there are some counterarguments that need to be considered, not just in the light of "Down Under" but for the future of creative expression in a free society. Consequently, this paper addresses the creative process and also Patterson and Lindberg's differentiation of use of the copyright and use of the copyright work.

Writing "Down Under"

According the case report of Larrikin v. EMI (2010) "Down Under" evolved over a number of years from its original 1978 composition to the recorded version released in 1981. Hay and Strykert played acoustic versions of the song (without theinfringing flute riff) in Melbourne clubs and pubs. At some point in 1979, Greg Ham joined the band and began including the flute riff in live performances and on recorded versions. At trial, the appropriation of "Kookaburra" was not wholly disputed by Hay et al and substantial similarity was affirmed by two expert witnesses.

Hay has publicly expressed his disappointment with the ruling: "When I co-wrote Down Under back in 1978, I appropriated nothing from anyone else's song. There was no Men at Work, there was no flute, yet the song existed" (BBC News, 2010). Further, Marion Sinclair or any subsequent copyright owners never noticed the appropriation, or if they did, opted not to take legal action.

Figure 1: Still image from the "Down Under" video.

An affidavit submitted by Greg Ham states that "Down Under" was almost complete by the time he added his flute line. He attempted to add a line that complemented the existing lyrics, melody, chords, bass line and rhythm section. The result was what he termed "an Aussie cliché melody" or an "Irish-Australian style melody" (Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited, 2010, para.99). The snapshot from "Down Under" video shows Greg Ham sitting in a tree playing his flute. The court posed to Colin Hay that this "was a direct musical reference to Kookaburra"; a proposition Hay accepted but did not feel was an obvious reference (Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited, 2010, para.106). Interestingly, stemming from the public interest in this case, a letter from one of the makers of the "Down Under" video was published in the Sydney Morning Herald:

When Tony Stevens and I made the Down Under video all those years ago, the shot of Greg Ham in a tree playing a flute had nothing to do with kookaburras ... The video was mostly shot in the Cronulla sandhills and the only option for something visually different was the mangrove swamp opposite the sandhills. Initially Greg was supposed to be "strolling through the mangroves" but by the time we got to that shot, the tide had come in and he had to sit in the tree. No kookaburras, no gum trees, just a quickly made, low-budget music video (Whitteron 2010).

Whitteron's letter rebuts the court's assumption that this event in the video was a guilty acknowledgement of appropriation. Although Hay begrudgingly accepts that the flute line was a reference to "Kookaburra …" he expressed surprise that "in more than 20 years, no one noticed" (BBC News 2010). Since its release, "Down Under" has become an iconic representation of Australia as it depicts an Australian recounting his adventures travelling around the world. The song closed the 2000 Olympic Games, and has been regarded as one of the best Australian songs of all time (APRA 2001). Let us also not forget that it has sold a lot of copies and made a lot of money.

Copyright

A full account of the history of copyright law is beyond the scope of this paper, but there are some important points that need to be made for the context of this paper. Copyright is not a static construct. The bundle of rights that constitute copyright are limited statutory privileges, but the ideology underpinning the law has changed from its original inception in 18th century England. The Statute of Anne 1710 established the world's first copyright law creating a limited monopoly in literary works to run for a maximum of 28 years. In its original form copyright was limited to the right to make copies and was partly enacted in response to piracy which was rife in the 18th century book trade. Copyright, however, is not just a legal construct; it also plays an important cultural role. Through the grant of a limited monopoly the law creates an incentive to create, ensuring that society is rich with creative expression.

In the current intellectual property climate one would be forgiven for thinking that copyright exists solely for the benefit of authors (and, of course, their assigns). Copyright, however, is a bargain – a temporary grant of monopoly in exchange for furnishing society with creative works (Waldron, 1998: 85). The primary beneficiary from this bargain is society. Since the 18th century, copyright law has expanded to encompass numerous rights beyond wholesale copying and its duration of protection has expanded to last for the lifetime of the author plus 70 years. This means that after an author dies, the rights in a creative work subsist over more than two subsequent generations. The importance of intellectual property to a national economy has bolstered rights to the point where almost any unauthorised use may be decried as infringement. For example, in the US Stephanie Lenz, mother of (then) 18 months old Holden uploaded a video clip to YouTube for family and friends to view (http://www.youtube.com/watch?v=N1KfJHFWlhQ). The 29 second clip featured Holden dancing around the kitchen to a barely recognisable recording of "Let's Go Crazy" by Prince. The clip was viewed a mere 28 times before YouTube reacted to a Digital Millennium Copyright Act take-down notice issued by Universal Music which owns the rights to Prince's song (McDonald 2007). Lenz since filed a counterclaim against Universal and the video was reinstated. Due to the media exposure surrounding the story, the viewing statistics for the clip exponentially rose from 28 to 951,023 at the time of writing.

Whilst most would agree that authors deserve remuneration for their work, it is imperative we remember that copyright has a cultural dimension – to ensure the creation of works. Copyright was intended to prevent authors from competing with direct copies of their own work in the same market; this is the economic harm the law was devised to manage. Patterson and Lindberg argue that "there must be a distinction between the use of the copyright and the use of the copyrighted work" (Patterson & Lindberg 1991: 66). This is an important distinction that appears to be all but neglected in contemporary copyright law, but the distinction is not an absolute, rather it is dependent on the ideology underpinning the law. Proponents of the free culture movement such as Lawrence Lessig or Kembrew McLeod might argue that unless market substitution is occurring copyrights should not be enforced. In the context of "Down Under" and "Kookaburra ..." it is difficult to conceive of a situation in which an individual would purchase the former over the latter in pursuit of enjoying the melody from "Kookaburra ...". The opposing propertarian or Blackstonian view on the other hand, argues for a right akin to real property, where any invasion of the work is infringement (Collins 2006). Thus, we find two primary opposing views at work in copyright: one where protection focuses on interference with the copyright and one focused on interference of the protected work. Although this is a simplistic binary opposition it is one that is embedded into the law.

Since its origins, copyright has secured rights in works to authors, but it has also secured rights to others for secondary uses. These manifest as mechanisms such as library use, and fair dealing/use. Until recently, fair use was a legal anomaly unique to the United States of America, but in 2008 Israel enacted fair use exemptions to infringement (Efroni 2008). The Australian defence of fair dealing differs from fair use in that its applicability is restricted to certain scenarios whereas fair use is open-ended and ostensibly able to cope with cultural changes and new forms of creativity. Fair dealing and fair use exemptions recognise the frequent need to use a work for inclusion in a new work and differentiate between use of the work and use of the copyright. In some cases, however, it is even permissible to enter the same market as the original. Kaplan notes that "parody may quite legitimately aim at garrotting the original destroying it commercially as well as artistically" (Kaplan 1967: 69). Although this paper is not concerned with fair dealing/use exemptions and certainly "Down Under" would not be protected as such, Patterson and Lindberg's distinction is relevant to the examination of the ideology underpinning copyright law.

The Creative Process

The threshold for originality under copyright law is quite low, but the legal construction of authorship has been influenced by Romanticism (Jaszi 1994; Woodmansee 1994). The Romantic notion of authorship originated during the last quarter of the eighteenth century and developed over the following century through poets such as Wordsworth, Goethe and Herder. Romantic ideology situates the author as the source of original ideas, a solitary and sovereign creator (Chartier, 1994: 9), elitist and isolated from society. The author was perceived as an individual "enslaved by a genius which stood him or her outside geography, history and all ordinary norms" (Kelly 1984: 59). Such a solitary and isolated view of creativity is incongruent with the process of musical composition which is as much a fusion of previously existing music as it is a new work of creative expression.

[M]usic is a product of borrowing, imitation and fusion across many cultures. Today, that process has taken on a truly global dimension. The beat of Africa, the dance styles of Latin America, the rhythmic beat of the Caribbean islands and the chants of the Indian subcontinent can all now be heard intermingling with the rasping blues of the American South, the folk traditions of Ireland and the breezy pop tunes of the United Kingdom. In this respect, it seems fair to describe popular musicians as the "true ambassadors of globalization", constantly crossing borders, literally and metaphorically, in the search for a sense of harmony among the rich patchwork of local cultures and traditions (Ricupero 2003: 1).

There is a rich history of appropriation throughout music history, without which, the scope of music composed through the centuries would be significantly reduced. Appropriation from previous composers stretches back as far as music itself. Classical composers saw themselves as part of a tradition in which originality was seen as a process of selection, reinterpretation and improvement, rather than act of solitary genius. Aaron Keyt argues that parody, mimicry and quotation can be found in classical music throughout the ages (Keyt 1988: 433). In the eighteenth century, Bach and Handel appropriated from other composers, and Vivaldi, Reinken and Stravinsky during his neoclassical stage, quoted nuances of older styles and pieces. For example, the Collegium Musicum of London explains on its website that Vivaldi borrowed considerably from another Venetian contemporary, Giovanni Maria Ruggieri. The final movement from Vivaldi's Gloria (RV 588) is an almost precise reduction, into one choir, of a two-choir Cum Sancto Spiritu by Ruggieri (Collegium Musicum of London). Continuing the tradition of appropriation, in 1991 Nirvana's "Come As You Are" revealed the influence of Killing Joke's "Eighties" and Keith Richards continues to borrow from Buddy Holly (Street 1986: 135). Chart toppers Coldplay describe themselves as not very original but rather "very good plagiarists" (Scaggs 2005). The list of borrowing is expansive, but this excerpt of a performance by American comedian Rob Paravonian convincingly illustrates the continuous tradition of musical appropriation.

If, as suggested, musical composition does not occur in a vacuum, but rather is a synthesis of inspirational or influential elements drawn from existing works, then it is only natural to find nuances of style and content in new music. Oasis' style borrows heavily from British 70s rock. Notably, the opening guitar riff for "Cigarettes and Alcohol" (1994) is a distinct acknowledgement of (or appropriation from) "Get It On" (1971) by Marc Bolan and T-Rex. Bolan himself had significantly borrowed from his peers. His early acoustic career as Tyrannosaurus Rex exhibited Dylanesque characteristics, whilst "Telegram Sam" (1972) lifted a guitar riff from Howling Wolf (referenced in the song's fade out where he can be heard singing "I'm like a howlin' wolf . . ."). Tad Lathrop, editor of Jazz Giants: A Visual Retrospective writes:

Originality in music is hard to come by. Most artists exist as a kind of active composite of the music they have learned and absorbed over a long stretch of time. Uniqueness emerges most often from the particular way a performer reworks his assimilated influences: in the projection of sound through idiosyncrasies of personality (Lathrop 1990).

In music, formulae and ideas are constantly reworked, re-engineered and recast in new creations. For example, see the Musical Borrowing online project which indexes over 1,200 academic works pertaining to musical "borrowing, transcription, variations, quotation, cantus firmus technique, paraphrase, imitation/parody, modelling, allusions, and other ways to rework existing music, from troping and organum to collage and electronic manipulation" (Burkholder 2003). Musical creativity does not neatly fit into the Romantic construction of authorship and further appears to be misunderstood when cases actually reach the courtroom (Collins 2008). A notable point is that cases such as Larrikin v. EMI (2010) are few and far between. After being sued by Bright Tunes Music Corporation for unconsciously appropriating Ronald Mack's "He's So Fine" for his "My Sweet Lord", George Harrison questioned why "the courts aren't filled with similar cases as 99 percent of the popular music that can be heard is reminiscent of something or other" (Barran).

Trolling for Cash

Law suits for musical appropriation may be motivated by various factors such as artistic integrity or attribution, but arguably a primary motive is money. Wu coined the term "sample troll" to describe Bridgeport Music, Inc. (Wu 2006). Bridgeport Music is a company that possesses no reportable assets except for its formidable portfolio of copyrighted songs. Bridgeport is in the business of exploiting its rights and "trolls" for unlicensed appropriation from its repertoire. In 2001 the company launched a barrage of lawsuits claiming nearly 500 instances of copyright infringement. Although not all the actions have been successes, juries awarded Bridgeport $4.2 million (USD) and $88,980 (USD) for unlicensed sampling by Notorious B.I.G. and Public Announcement respectively (Billboard 2006; Butler 2007). Would Bright Tunes Music have litigated against George Harrison if "My Sweet Lord" had not been a number one hit and Harrison was not an ex-Beatle with deep pockets? Similarly, Rose notes that:

…before rap music began grossing millions of dollars, the use of these musical passages went unnoticed by publishing administrators and copyright holders … Today, rap is big business. With multimillion record sales … the pursuit of the illegal use of sampled materials has become a complicated and high-profile issue in the entertainment industry (Rose 1994: 90).

In permission culture where the distinction between use of a work and use a copyright has all but disappeared, copyholders exploit their rights to generate lucrative incomes for any perceived infringement. Speaking after the court ruled on the use of a flute line intended to inject some Australiana, Colin Hay said "what has won today is opportunistic greed, and what has suffered is creative musical endeavour … It's all about money, make no mistake" (Ham & Arlington, 2010). Norm Lurie, managing director of Larrikin Music Publishing advanced a propertarian argument stating "[o]f course it would be disingenuous for me to say that there wasn't a financial aspect involved, (but) you could just as easily say what has won out today is the importance of checking before using other people's copyrights" (BBC News, 2010). Larrikin Music Publishing (which is controlled by multinational company Music Sales) acquired the rights to "Kookaburra ..." in 1990 for $6,100 (AUD) and it has been a lucrative investment. Lurie estimates that exploitation of the copyright has earned Larrikin "hundreds of thousands" of dollars:  "It's earnt a hell of a lot of money for us since we've bought it" (Ham & Arlington 2010).

This returns us to the crux of the argument – Patterson and Lindberg's distinction between use of the work and use of the copyright. Affidavits from Men at Work's flautist Greg Ham indicate that appropriation from "Kookaburra …" was not intended to be anything more than a gesture to Australian culture, arguably an act entirely appropriate to the context of "Down Under". To suggest any risk of market substitution would be a spurious argument, yet contemporary copyright law is concerned with protecting rights regardless of any demonstrative economic harm. In a field of creative expression such as music where appropriation is part of the creative process, this ruling could have significant and undesirable impacts and set a dangerous precedent for accusations of unauthorized appropriation.

Musically speaking, there are only limited combinations and sequences of notes that are euphonically pleasing, thus some reproduction is inevitable. That is not to say that vast portions of songs will be explicitly copied, but rather influencing nuances of style and content will manifest. For example, the vocal melody "Viva La Vida" by Coldplay is very reminiscent of the melody in "The Songs I Didn't Write" by Creaky Boards. Further, the ubiquitous nature of music, especially a popular nursery rhyme melody such as "Kookaburra" gives it a very public dimension. Alex Kozinski, a judge for the Court of Appeals for the Ninth Circuit warns:

[A]ny doctrine which gives people property rights in words, symbols and images that have worked their way into our popular culture must carefully consider the communicative functions those marks serve. The originator of a trademark or logo cannot simply assert, "It's mine, I own it, and you have to pay for it any time you use it". Words and images do not worm their way into our discourse by accident; they're generally thrust there by well-orchestrated campaigns intended to burn them into our collective unconsciousness. Having embarked upon that endeavour, the originator of the symbol necessarily – and justly – must give up some measure of control. The originator must understand that the mark or symbol or image is no longer entirely its own, and that in some sense it also belongs to the all those other minds who have received and integrated it (Kozinski 1993).

Although Kozinski is writing about trademarks, the sentiment of cultural ubiquity is applicable to copyrighted music. Kozinski echoes the 18th century words of Justice Joseph Yates who referred to publication of literary property to be a "gift" to the public and any attempt to restrain that gift to be "quite chimerical" (Millar v. Taylor, 1769: 2365). The propertarian approach, however, is opposed to free culture stances that encourage creativity inspired by media to which we are exposed.

Under section 115 of the Copyright Act 1968, the court has the option to either award damages or order an account of profits. An award for damages is typically based on the fee that the copyright holder would have charged for use of the original work whereas an order for an account of profits is usually invoked when the infringement amounts to piracy and market substitution occurs. The order requires the infringing party to pay any profits made from the work to the copyright owner. Damages in Larrikin v. EMI (2010) have not yet been set, but Larrikin are seeking between 40-60% of royalties from "Down Under" (BBC News 2010). In many ways, this case mirrors the situation in which The Verve found itself when using a sample from an orchestral version of the Rolling Stones' "The Last Time" (recorded by the Andrew Oldham Orchestra) for "Bittersweet Symphony". ABKCO Industries was owned by the late Allen Klein. ABKCO held the copyright in "The Last Time". Although a licensing agreement was reached between Klein and The Verve, after its release Klein sought to renegotiate the license and managed to secure 100% of the royalties in "Bittersweet Symphony". Vocalist Richard Ashcroft, embittered by the result said "[w]e sampled four bars. That was on one track. Then we did 47 tracks of music beyond that little piece. We've got our own string players, our own percussions on it. Guitars. We're talking about a four-bar sample turning into "Bittersweet Symphony" and they're still claiming it's the same song" (Barran). Further, the Harry Fox Agency's online mechanical licensing tool - Songfile® - lists Mick Jagger and Keith Richards as songwriters with Ashcroft receiving credit for the lyrics. Jagger and Richards were even nominated for a Grammy for "Bittersweet Symphony". The irony of The Verve's situation is that neither Richards nor Jagger actually performed on the orchestral version of "The Last Time", additionally the chorus for "The Last Time" is lyrically very similar to "This May Be the Last Time" by the Five Blind Boys of Alabama. Relying on expert testimony, the court was satisfied that the flute line from "Down Under" was substantially similar to the hook from "Kookaburra …" which in turn was qualitatively important enough to embody the character of the song. According to the rendition of "Kookaburra …" performed by the Pickerington Elementary Choir, the song is approximately one and half minutes long (http://www.youtube.com/watch?v=l1Uq6AB_4hM) with the melody repeating across the four verses. Conversely, the flute line in "Down Under" lasts only for approximately eight seconds and appears just three times throughout the song's duration of three minutes and 31 seconds. Arguably, 'the punishment should fit the crime'. Taken wholly, the melody from "Kookaburra …" is one small component of "Down Under" and in the context of the song is not an essential hook. As Colin Hay stated in court, the song existed in a complete form well before Greg Ham added his flute line. If the court opts to award a large sum of damages or an order for account of profits it reinforces the law's narrow approach to creativity. In the American case of Campbell v. Acuff-Rose Music (1994) the issue revolved around an unlicensed parody of "Oh, Pretty Woman" by 2 Live Crew. Although the facts of this case are in no way directly transposable to "Down Under", Justice Souter stated that the economic aspects of a case should not unfairly dominate the societal benefits gained by protecting a transformative work (Luther R. Campbell aka Luke Skyywalker, et al. v. Acuff-Rose Music, Inc., 1994: 584). Justice Souter's words have no binding authority in Australia (although they may be influential) but they do point back to the reason for why copyright was first set in place. This begs the question, is society richer for "Down Under"?

Conclusion

Although the ruling in Larrikin v. EMI (2010) is upheld by the black letter of the law, the propriety of the decision in the context of musical creativity is contestable. Arguably, copyright law has overstepped its raison d'être to the point where it may be used as a regulator of creative expression. The law is not optimised to foster creativity, but rather hinder and/or capitalise on it. Pure financial exploitations of copyrights in cases such as this are more likely to have an adverse effect on the incentive to create and chill future creativity. There is little that can be done in the case of "Down Under", but policy framers should be aware that a totalitarian copyright is a dangerous thing. In the case that established copyright as a statutory privilege, Lord Camden warned of overreaching monopolies in the book trade arguing that "learning will be locked up in the hands of the Tonsons and the Lintons of the age, who will set what price upon it their avarice chooses to demand, till the public becomes as much their slaves, as their own hackney compilers are" (Donaldson v. Becket 1774: 1000). Transposed onto music in the context of the case at hand, the risk of permitting monopolies in music is that new works may be potentially subject to litigation. Policy framers and the courts need to reinstitute the distinction between the use of the work and use of the copyright in order to preserve free creative expression lest society suffers. As Kaplan argues, "[t]he fundamental that 'use' is not the same as 'infringement', that use short of infringement is to be encouraged, is relevant to these transformation cases" (Kaplan 1967: 56-7).