There was much kerfuffle this week about the decision by an Australian judge to side with Larrikin Music in their fight with the pop group Men at Work over whether the band plagiarised from the children’s song Kookaburra (Sits in the Old Gum Tree). In a long running case, Justice Peter Jacobson decided that the flute riff from Men at Work’s biggest hit Down Under (you know the one… yes, that one) "...reproduce[d] a substantial part of Kookaburra".
This means Larrikin are entitled to a percentage of Down Under’s current and past royalties. How much do they want? “Obviously, the more the better but it depends - … between 40% and 60%, and what they've suggested which is considerably less."
Despite any outward appearance of a David and Goliath case (small publishing company representing the interests of wronged songwriter versus multi-million selling rock stars and Sony BMG/EMI) Larrikin are no David. I’ll admit straight up that I don’t have a nuanced knowledge of the ins and outs of copyright law but I find a few things very wrong about this whole shemozzle which I’d like to inarticulately and self-contradictingly share…
Firstly, as can be deduced from Larrikin’s reaction to the judge’s decision this is solely about money. Marion Sinclair, who wrote the lyrics to Kookaburra, died in 1988. There has been no mention that this is a fight on behalf of her family or in her name. It is about nothing more than opportunistically cashing in on something that Larrkin have no understanding of or emotional investment in, as proved by the fact it took a joke reference to the flute riff on the quiz show Spicks and Specks before they realised there might be money to be made.
Secondly the decision is harsh because technically (though the courts disagree) Larrkin only own the rights to the words to Kookaburra. The tune – of which only a small part was used in Down Under – is a traditional Welsh children’s song adapted by Sinclair for the Girl Guides and out of copyright for many years. That the case is geared around the music they don’t own and not the words they do makes Justice Jacobson’s decision hard to swallow.
Thirdly the shadow-boxing around the idea whether plagiarism occurred has helped no one but Larrikin. Of course the flute bit in Down Under sounds like Kookaburra; it’s meant to! It’s a song about Australia for buggery’s sake. It’s a cheeky reference to Australian childhood just as the line ‘she just smiled and gave me a vegemite sandwich’ is about Aussie breakfast. It’s like the KLF using Jerusalem in It’s Grim up North to evoke Englishness. It’s a song that deals in broad brush stereotypes; that’s why people like it! I’m sure Men at Work will never be able admit that it’s deliberate in public since they have based their defence around denial of the similarity but in the hip hop world it would be considered a very clever bit of sampling… which brings me on to the fact that…
…fourthly, Down Under was written at a time when songwriters just did that kind of thing. Applying 2010 laws to something that happened in 1984 is plain silly. In days of yore you could, for example, be a publically open Beatle-worshipper like Paul Weller, write a song like Start! which brilliantly rips off the bass line to George Harrison’s Taxman and have no one blink an eyelid. It was only when sampling went mainstream with tracks like MARRS’ Pump up the Volume that songwriters started objecting to use of their music and went looking for payment (for more on wilfully subversive sampling in this period check out the antics of the Justified Ancients of Mu Mu – later the KLF – who stirred up a hornet’s nest by sampling Abba, Queen, Whitney Houston and the Beatles).
Anyway, rights and wrongs of sampling put to one side, and even accepting that the world revolves around money, surely royalties need to be commensurate. The importance of the flute riff has been a bit overstated, which has lead to the ridiculous claims of 40-60% by Larrkin. Whilst it is only a pop song, there is far more to Down Under than that riff. I hope that when the decision on royalty splits is made later this month they avoid the fate of the Verve who were forced to credit the Rolling Stones as the writers of Bitter Sweet Symphony and hand over 100% royalties to Jagger and Richards for something they had precious little to do with.
Finally, this is not about sticking it to the man; Men at Work are not Sting. They’re a bunch of blokes who struck it lucky with one (admittedly huge) moment in the spotlight by writing a funny song that the Australian people took to their collective sun-burnt leathery bosom. No doubt some of them then had to go back to their day jobs; I doubt they live in mansions drinking imported beers from golden goblets. They may make a bit of money from FM radio stations, but you know what, they deserve it. When I write a multi-million selling international hit record I’ll deserve it too. Larrikin, whoever they are, have written nothing and deserve nothing.
Were Marion Sinclair was still around I could understand some moral reasoning for looking out for her interests – after all she too partly wrote a song equally embraced by the world as a symbol of Australia – but since that particular bird has flown this mortal tree this latest court action boils down to one thing - Larrikin wanting all the gum drops for themselves. Laugh Larrikin laugh, while you can.