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Kookaburra, down under and the dire state of copyright law

Guest Post by Marcus Westbury March 08

A Kookaburra (image by Eva Hejda)

A Kookaburra (image by Eva Hejda)

Court decisions, particularly those involving heinous crimes, are typical talkback and tabloid fodder. But how often does the heinous crime that has the public up in arms revolve around the obscurity of copyright law?

The other week, the Federal Court found that Men at Work had infringed the copyright of Larrikin music in its iconic early ’80s hit Down Under with that flute riff lifted from Kookaburra Sits In the Old Gum Tree. The reaction seemed to range from the bemused to the incredulous. Comments on news websites and online forums have described the decision as “plain stupid”, “an utter crock”, “disgusting” and “crazy.”

As someone who has long been frustrated with absurdities of copyright, the decision didn’t surprise but the reaction certainly did. I suspect that the reaction has been so stark for a few reasons. The first is that Down Under is a pop classic. It’s one of those rare works of any genre that has transcended the pop charts and wedged itself into the national psyche. The court has questioned its very existence.

Think about that. Imagine if a song that, for better or for worse, has been associated with defining moments of our national identity was never created? Today, without the kind of legal agreement that most artists struggle to negotiate, Down Under would never have been recorded. Inevitably, tomorrow’s favourite songs risk being lost forever for what might debatably be described as homage, similarity or subliminal referencing.

The implications go beyond this case. The practical reality is that, today, all sorts of works are routinely not recorded or created for the want of a licensed sample or pre-emptive permission. The trend is spreading into other art forms.

Try filming the Sydney Opera House. Will the estates of Brett Whiteley or Ken Done find themselves in court as the result of an overzealous future application of the Opera House trademark? Will future generations of artists be sued for painting, videoing or photographing it?

Implausible, but possibly yes, and not much more implausible than this decision might have seemed in the 1970s.

The second source of the outrage is that it is the owners and not the author who brought the case. Kookaburra’s writer Marion Sinclair died a decade after the Men at Work song was released and there’s no suggestion she ever objected to it.

The decision reinforces the argument that a set of rules designed to protect artists, creators and innovators has become the domain of profiteers, speculators and litigators. At its worst, copyright law is evolving from a set of legal protections to an almost predatory casino industry. If you’re on the wrong end of it, copyright can resemble a protection racket to extract dollars from creators for even casual, creative, referential and reverential use of works they honour and love.

The final sense of disbelief stems from a more basic shock that the case has been brought now. How can a similarity that was barely remarked upon for nearly 30 years suddenly be regarded as blatantly ripping off someone else’s intellectual property? Is there no statute of limitations on these things? Some common-sense reappraisal of copyright is desperately overdue. A system designed to reward innovation is increasingly stifling it. A system designed to empower creators is alienating them. The law has drifted further and further away from forums where artists and creators have any say and towards a system wherein the lawyers, lobbyists and profiteers are writing rules that serve their interests.

Artists need to reassert themselves in the debate. A healthy right to reference and draw from the culture around you is vital to contemporary artistic expression. It is vital to innovation – the very thing the copyright system is supposed to encourage. Surely we can open up the system, take out the lawyers and profiteers and switch to a system that actually encourages appropriate use and reuse? Work that is drawn from or references the work of others is natural and inevitable; what’s missing is a simple and proportionate mechanism to ensure that they are compensated. It’s been a difficult debate to get started, but perhaps this decision will be the catalyst for it. No doubt the popular backlash will come with consequences. You mess with unofficial anthems at your peril.



Cross-posted from my life. on the internets


 

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