Kookaburra Sits in the Jury Box
November 13, 2013 9:09 AM   Subscribe

In 2007 (or maybe 2008, sources differ here), the Australian music game show Spicks and Specks asked its contestants to name the popular children's song that can be heard inside the all-time great 1981 Aussie anthem "Down Under" by Men at Work. None of the contestants identified the correct answer - "Kookaburra Sits in the Old Gum Tree." (As a flavor - or flavour, I guess - of the show, here's Colin Hay of Men at Work on the show in 2008. He performs "Down Under" at the end.)

"Kookaburra Sits in the Old Gum Tree" was written in the 1920s by Marion Sinclair, an Australian music teacher who worked with the "Girls Guides," a Girl Scout-ish group in Australia. In 1934, Sinclair entered the song in a contest to benefit the Girls Guides, and the publishing revenue from the sheet music was used to help build Britannia Park, a campground for Girls Guides that is still around. "Kookaburra" is a quintessentially Australian song, and has been sung for 75+ years around campfires, in school choirs, and on playgrounds. (You probably are singing it in your head right now.)

Sinclair died in 1988, and so the song is still well within copyright protected status - under Australian copyright law, copyright in a song lasts for the life of the creator plus 70 years (before 2006, plus 50). While most people assumed that the Girls Guides owned the copyright to the song - the story of the 1934 contest is apparently quite well-known in Australia - it was in fact held by Larrikin Records, home to such great artists as the Rank Strangers bluegrass band (second record only!) and the Flying Emus' debut record.

Following the broadcast of Spicks and Specks, Larrikin saw dollar signs. It filed a lawsuit for copyright infringement, contending that part of the flute melody on the song - improvised by the late Greg Ham - was ripped off. Here is an NPR story that ran contemporaneous with the filing of the lawsuit. Larrikin sought between 40 and 60 percent of all royalties on the song, from day 1 of its release.

The offending part was recorded in 1981 and is all of two bars - TWO BARS!! - but the test for infringement looks at the proportion of the original song that is used, and "Kookaburra" is only a four bar song. After deciding the issue of copyright ownership in Larrikin's favor, the Court in Australia amazingly found that the band was liable for infringement. The band appealed, but the Court of Appeals affirmed the decision and the high court declined to hear the matter. Here's a great write-up from an Australian law firm that gives a succinct overview of the case and its finding.

The silver lining for Men at Work - if it may be called that - is that the court awarded modest damages to Larrikin. Instead of the 40-60% from day one sought by the plaintiff, the court found that damages were recoverable only from 6 years prior to the suit and forward (so, for 2002 onward), and found that 5% was a fair number. The 5% was determined based on the wholly-hypothetical licensing arrangement that the Court thought the parties would have entered into if they had talked in 1981.


Bonus fact: Despite its age and ubiquity, the song "Happy Birthday to You" is still under copyright protection, having been registered in 1935. The song is now owned by Warner/Chappell Music (part of the big giant Time Warner conglomerate), and allegedly accounts for $2 million in licensing fees each year. But earlier this summer, a crop of class action lawsuits - with lead plaintiffs who are filmmakers who were shaken down for a licensing fee for use of the song in their work - were filed in federal courts in New York and San Francisco, claiming that the copyright is invalid. The outcome of that case is as of yet unknown. (Previously on the "Happy Birthday" suit)

Bonus fact 2: Just for good measure, here are the videos for Men at Work's Who Can it Be Now?, Overkill, and Be Good Johnny. They really had a great run.

Previously - RIP Greg Ham (with some discussion of the copyright issue)
posted by AgentRocket (15 comments total) 14 users marked this as a favorite
Girl Guides aren't just Girl Scout-ish - they were the original Girl Scouting organisation. For a long time the organisation was led by Agnes Baden-Powell, sister of Lord Robert Baden-Powell, who founded the Boy Scouts. They're still highly active, particularly in the UK, but the Wikipedia article claims there are member organisations in 145 countries.
posted by spielzebub at 9:22 AM on November 13, 2013 [2 favorites]

Colin Hay also performed on Scrubs.

Men at Work sort of formed the background noise I grew up with. Like Huey Lewis and the News and a bunch of other, I never noticed at the time just how strong and awesome these guys were. I've been rediscovering them now that they come up on Pandora and rediscovering just what a moron I was to ever have wasted my hard earned lawnmowing money on Poison and Motley Crue.

Also, you left out "It's a Mistake".
posted by Pogo_Fuzzybutt at 9:43 AM on November 13, 2013 [1 favorite]

(You probably are singing it in your head right now.)

Yes, yes I am. You bastard.
posted by shelleycat at 10:16 AM on November 13, 2013 [3 favorites]

Saints Row 2 introduced me to "Down Under" (nostalgia-ception!), which is now a vital part of my mental soundtrack to running down pedestrians.
posted by Inspector.Gadget at 10:47 AM on November 13, 2013

Love Colin Hay. I still have Business as Usual on vinyl. Was my first rock n' roll album given to me for my 10th birthday 31 years ago. Still brings warm fuzzies when I cue it up.

In the liner notes, when listing band members and instruments, Greg Ham was listed as also being in charge of "fiddly things".
posted by rhythim at 11:03 AM on November 13, 2013

I recognized the flute riff's origin the first time I ever heard it, it's ten or eleven quick little notes, and while it recurs it's basically an embellishment to the song, not part of its real melody line. I've always thought that that sort of thing constitutes a kind of quote or reference and probably enhances the value of the original by helping to reassert its cultural standing, it certainly doesn't replace it. On the other hand, music publishers are probably afraid that any precedent allowing such usage will harm rights down the road: sorry, your song is so iconic that it's been acquired by eminent public domain...
posted by George_Spiggott at 11:21 AM on November 13, 2013

Do something, kookaburra!
posted by Infinity_8 at 11:44 AM on November 13, 2013

Not the last popular australian song to borrow/reference a children's song, either...
posted by Jon Mitchell at 12:32 PM on November 13, 2013

Thanks AgentRocket. I've heard the first half of that story a few times but always thought it ended similarly to the Bitter Sweet Symphony saga - a disproportionate share of royalties awarded to the sampled party.

I'm not sure the combination of "wholly-hypothetical licensing arrangement" and limitation of actions laws is the ideal vehicle, but 5% of royalties from 20 May 2002 onward seems... fair. At least, a lot fairer than the Rolling Stones receiving 100% for BSS.
posted by Chipeaux at 1:13 PM on November 13, 2013

I've seen Colin Hay perform a number of times live. Seeing him last time, he was deeply upset at Ham's death, and clearly blamed the lawsuit for it. He did sing "Down Under" reluctantly, and in a very melancholy version. It was very sad.
posted by Chrysostom at 1:38 PM on November 13, 2013 [1 favorite]

What a post! Speaking of posts, you'd have to be dumb as one to be 8 or older and born in Australia and not know "Kookaburra Sits In The Old Gum Tree". Merry merry king of the bush is he. Laugh, kookaburra, laugh, kookaburra, gay your life must be. (I literally can't recite the first bit without needing to do the rest. Kookaburra song is best song. Also I had a friend kookaburra once, he let me give him head scritchies in return for minced beef.)
posted by turbid dahlia at 2:26 PM on November 13, 2013

I saw Colin Hay at the Iota in Arlington some years back. It's a small club, so I caught a glimpse of him on my level. He's a short little guy!
posted by NedKoppel at 7:40 PM on November 13, 2013

As I recall, Adam Hills (the host of Spicks & Specks) apologised on air after the lawsuit, because neither he or anyone else on the show thought that this would be the result. I think most people's sympathies were firmly with Men at Work.
posted by Athanassiel at 8:50 PM on November 13, 2013

I don't think they should've been sued for what was effectively sampling or remixing, but I don't have much sympathy for people who tell porkies. They're up there with Vanilla Ice.

They used Kookaburra, acted it out in their film clip, sang the lyrics during stage shows, then played dumb when somebody said there was money on the line. It was all just a terribly unlikely chain of repeated coincidences, your Honour.

By all means, plead ignorance that it was under copyright, or that royalties might have been required, but don't try to say yours is completely different because it's 'da DA da da da-da da da'.
posted by obiwanwasabi at 2:55 AM on November 14, 2013

turbid dahlia: "Speaking of posts, you'd have to be dumb as one to be 8 or older and born in Australia and not know "Kookaburra Sits In The Old Gum Tree". Merry merry king of the bush is he. Laugh, kookaburra, laugh, kookaburra, gay your life must be."

Growing up in California, we sang the last line as "Laugh, kookaburra, laugh, kookaburra, save some gum for me!"

(Bay Area kids are quite familiar with eucalyptus trees, and we'd been told that in Australia they're called gum trees. But for a bunch of 10-year-olds, it was more fun to imagine the bird sitting at the top of a Bazooka or Dubble Bubble tree. Of course it's laughing — who wouldn't be?)
posted by Lexica at 12:17 PM on November 18, 2013

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