better run, better take cover

Here is the score of a conceptual music piece I have composed, “Here Comes EEverybody”:

The piece is scored for any instrument or combination of instruments. The score consists in its entirety of the note E, in any or any combination of octaves, which note may be played any number of times, in rhythms, volume, and articulation to be chosen by the player or players. Other notes may be played, but such notes are not necessary.

An interesting fact about copyright is that under the Copyright Act of 1976, Section 102, copyright is granted, without any requirement of registration, to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device…”

If you’ll excuse me, I’m off to sue anyone writing any music that quotes my new piece. (Tonal musicians working in the keys of E-flat are probably safe, however.)

Is that absurd? Yep. But only a little more absurd than the judgment an Australian court rendered against Men at Work for “plagiarizing,” in their huge eighties hit “Down Under,” a children’s song written by schoolteacher Marion Sinclair in 1934 and sung commonly by the Australian equivalent of the Girl Scouts (the Girl Guides), known as “Kookaburra Sits in the Old Gum Tree.” You can hear an a cappella performance of the song at the BBC article linked above.

So what exactly did Men at Work “steal” here? Two bars, a total of ten notes on three different pitches and in a distinctive rhythm (the opening phrase of the “Kookaburra” song), repeated a couple of times in the flute interjections after “Down Under”‘s chorus. That’s it – and for that, the “Kookaburra” song’s composer’s heirs are asking up to 60% of the income from the song. And that is utterly absurd.

First, if the phrase is from the “Kookaburra” song, it’s likely an ad hoc quotation, meant as iconic allusion to something typically Australian (just like most of the lyrics). Musicians have done this sort of quotation for hundreds of years. Second, it is not even a literal quotation: the original song is in a major key, and the phrase in question begins on the fifth degree of the scale (G in C major, say), moves up a whole step after the rapid repetition of the first four notes, then concludes on a repetition of a two-note minor-third descent from the fifth to the major third of the scale. Men at Work’s quotation is in a minor key, beginning also on the fifth degree of the scale but rising only a half step, and the final figure descends a major third (not a minor third) to the third degree of the minor scale. Again: this sort of transformed allusion is the sort of thing musicians have always done: classical music is full of such quotations, from folk songs and from other composers’ work…and jazz would all but cease to exist if such allusions and quotations were banned.

And of course, why did it take twenty-five years for anyone to notice this alleged theft? The composer, it turns out, lived till 1990 – and it’s hard to imagine any Australian not having heard this song. Apparently, either she did not notice the borrowing, or did not care. The only motivation here is financial, obviously: her heirs (or her heirs’ lawyers) happened to hear the song and a little bell went off in their heads. Or more likely, the sound of a cash register (KA-CHINNGG!)

According to this article, the allegedly offending phrase wasn’t even written into the song but was developed from stage improvisations by flute player Greg Ham. The rest of the band weren’t even conscious of the similarity at the time – which might sound like a convenient lie, except that the phrase is so small, so simple and basic, that it could have been from nearly anywhere.

Pretty obviously, Men at Work need to get better attorneys. As I said, this sort of musical borrowing, intentional or not, goes on all the time. Some examples: Frank Zappa quotes probably hundreds of different songs in his music, including “Louie Louie” dozens of times. The opening of Devo’s “Uncontrollable Urge” is most likely an homage to the beginning of “I Wanna Hold Your Hand” (and their video to “Whip It” borrowed from a 1944 “Soundie“). The melody of “Paint it Black” is very close to Beethoven’s Ode to Joy transposed into a minor key. Approximately one zillion songs (including, oddly, prog-rock band Renaissance’s melodramatic Solzhenitsyn tribute “Mother Russia”) borrow Raymond Scott’s “Powerhouse” theme. And, this famous Looney Tunes theme shares its first five notes with “Mary Had a Little Lamb”…

A couple of ideas. First, copyright should return to the notion of protecting and encouraging creative rights…not the property rights of publishers in perpetuity (otherwise known as “Mickey Mouse time”: the extension of copyright keeps getting revised…right around the time Disney’s rights in Mickey Mouse are due to fall back into the public domain…). Marion Sinclair’s grandchildren or whoever did not have anything to do with the success of the Men at Work song, nor did the publishers of Sinclair’s song. Frankly, if anything, the Men at Work song might have spurred the children’s song’s popularity, if anyone recognized the quotation. Second, there should be a reasonable notion of fair use in musical works, as there is (or should be: it’s been severely limited in recent years) in written works. Amusingly, in the latest issue of The Nation there’s a review of J.M. Coetzee’s most recent book. The headline for the article is “Telling It Slant” – a re-worked allusion to the famous phrase of Emily Dickinson (“tell all the truth but tell it slant”). Of course (as is typical with such literary allusions) the reference is not explained or credited anywhere in the article: it is left to the reader’s discovery. I rather doubt that Dickinson’s heirs, or any of the publishers of editions of her poetry, is going to sue The Nation for “plagiarism” in referencing, by a transformed quotation, material to which they own certain rights. Reference is not plagiarism, even if it’s indirect or not overtly acknowledged as reference.

The precedent this case might set (at least in Australia) is surely dangerous: it is very hard to write popular music, in that music’s limited tonal vocabulary, without inadvertently quoting or near-quoting short melodic or rhythmic fragments from other works. There’s a huge difference between purposeful or accidental snippets like the flute melody in “Down Under” and wholesale theft: I would argue that something like the non-transformed use of the bass riff in “Ice Ice Baby” (from Queen and David Bowie’s “Under Pressure”), or even all those songs in the late seventies that blatantly stole the rhythm and riff from “What a Fool Believes” (notably “Steal Away” by Robbie Dupree), much more clearly owe a musical and literal debt to their sources than something like a two-bar flute lick which could be substantially changed without destroying the character of the song.

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6 Comments

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6 responses to “better run, better take cover

  1. villain

    “Tonal musicians working in the keys of E-flat are probably safe, however”

    No, because caselaw has already established that transposition is not composition.

  2. Ah, good point: my net is cast in ever-widening ambit!

  3. You could potentially be sued for the title of your blog, if anyone could prove who first said that writing about music is like dancing about architecture…

  4. Actually (and I should have noted this with my reference to the Dickinson allusion) titles cannot be copyrighted, if I remember right.

    So I’m okay. Except if I use the title of my blog in my blog. Apparently.

  5. Copyright laws are so nutty these days & vary so much country to country. In the end will they get 60% of the worldwide earnings or 60% of the Australian earnings? For that matter how can you define earnings, Men at Work’s or Warner Brothers (or whoever it is that put it out)?

    Personally I believe that copyrights should be owned by individuals & not corporations & revert to public domain say ten years after death.

  6. Pingback: About Kookaburra Song | Broadcasting News

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