Can't You Hear, Can't You Hear that Flute Riff?

Men at Work's Colin Hay  and Ron Strykert have been embroiled in a high-profile plagiarism case regarding their 'unconscious use' of a five-bar flute riff in the Australian classic, 'Down Under'. Whether you consider it a win for Hay and Strykert, or a win for Larrikin Music, they're in it to the tune of a six figure sum. Soulshine's Max Easton discusses music ownership, plagiarism and good old fashioned common sense.

Something, something, vegemite sandwich. You know what I'm talking about. It's that line that almost everybody can only half remember from a song that almost every Australian only half likes; Men at Work's 'Down Under.' Except that apparently, frontman Colin Hay and co-writer Ron Strykert are thieves. THIEVES. You see, as it transpires, that little flute riff of almost no consequence embedded within the song somewhere is owned by the Larrikin Music Publishing company, originally recorded on the Australian girl scouts classic, 'Kookaburra sits in the Old Gum Tree.' Turns out that Men at Work, evil cheats that they are, stole it cold. This isn't any loaf of bread theft story, this is part of an entire FIVE bars of music. Meaning a whole 0.05% of 'Down Under' belongs to someone else!

The result of that heinous act is a 5% share of all royalties from 2002 onwards that the track earned landing in the pouches of Larrikin Music. That's, surprisingly, a lot of money...the newspapers are calling it a six figure sum. But at the butt end of all that, the question must be asked; why did this unheard of music publishing company wait 20 years from their acquisition of the song rights to Kookaburra.. to realise that a part of the song was theirs? And is it really theirs? Who owns that little flute riff? And is it really worth 5% of a song's earnings? I mean, I didn't even realise that there was a flute in the song until the news broke. Really, the very, very key question in all of this is - who cares?

Colin Hay claims it was written from an "unconscious memory." Whether he meant subconscious or not is another story, but is that a valid excuse? When I first picked up a guitar, I learned the chords A, E and D...and was heartbroken when the song I thought I wrote ended up pretty much being 'Black' by Pearl Jam. Sure, I didn't record it and make a career off it (even though I should have god damn it,) but that crap attempt at a piece of music is no less mine than it is Eddie Vedder's than it is the first ever guitarist who played alternating A's and E's. Of course there's a copyright thing here where someone's creative work will always belong to them, but come on, as if 'Down Under' would be any less than what it is without that super memorable line from 'Kookaburra Sits in the Old Gum Tree.'

Surely though, there can be a bit of common sense surrounding copyright law. How can music, something completely intangible, go under someone elses name for 30 years, and then post-humously be co-written by some single parent with a flute? You'd really think that the Larrikin Music Publishing company kinda missed the boat on this one. In the Men At Work V Larrikin case the judge ruled in Men at Work's favour, citing Larrikin's claims to be optimistic. Which is a completely fair assessment, however they still got a payout. It seems like a really bizarre situation to be in. There's no possible way that someone would make such a ridiculous case as this in the courts and win on some other occasion right? Right? 

Throw back to the year 2002. A year where Creed, Nickleback and Linkin Park were topping the Billboard charts. A year of not only disgusting music, but disgusting music practices. In this very year, Mike Batt, songwriter for a classical rock band The Planets, stole every single bar of music from another artist and had the hide to release it as his own work. In 2002, Mike Batt includes a track called 'A One Minute Silence' on his album. Just like Colin Hay, he was also a thief. A THIEF. As a result of his deception, Mike Batt paid to the estate of John Cage a supposed six figure sum. The song? John Cage's 1952 composition '4'33'; filled with nothing but silence. You think that suing for a five bar flute line is ridiculous? Try suing for nothing and winning a couple of hundred thousand bucks. This isn't new...in fact, even music plagiarism isn't new.

In the past decade alone, The Hives have been sued for stealing a riff, Guns n Roses stole "ambient noise" from a German electro musician, Coldplay ripped off Joe Satriani and Andrew Lloyd Webber stole the intro to the Phantom of the Opera theme from Pink Floyd (of which he'd always get caught since his middle name is pretty much their band name.) Even Metallica's 'Enter the Sandman' has been shown to be completely stolen, just prior to them going all whacko on Napster for stealing their music. That's only recent music history. Led Zeppelin have been shown to have ripped off anyone from Howlin' Wolf to Bob Dylan, both of whom played variations on Blues and Folk respectively, which have undercurrents of appropriating the songs of others. Even throughout the 40's and 50's, white pop artists signed to major labels were releasing covers of black rhythm and blues that couldn't get played on radio due  to poor distribution and the fact that radio broadcasters assumed that most people just didn't want to hear 'black' music. This whole issue of ownership isn't new; but what is new is the acknowledgement by the courts that silence can be stolen, 30 years can pass before you claim a tune and that 0.05% of a song by duration is worth 5% by profit. 

So what situation does that leave the music industry in? Numerous DJ-driven albums have been delayed recently due to clearing samples through legal departments (probably most notably, the long awaited follow up to the Avalanches 'Since I Left You.') Indeed, artists like the Black Eyed Peas and Michael Franti have run into legal trouble for copyright infringement stewing out of samples, but sampling is a very different kettle of copyright. There's absolutely no doubt that a sample belongs to someone else, but what about subconscious riffs and melodies? It's entirely possible that whoever played flute on 'Down Under' ripped a little piece of Australiana from their memory banks and then recorded it, but it's also entirely possible that that's just a convenient excuse for the judge.

All that can be hoped for is for common sense to prevail. Will the courts find a way to treat music copyright in a common sense manner? Maybe...but probably not. Common sense, isn't, strictly speaking, legal. What is common sense to the entire planet might not be common sense to the Larrikin Music Publishing company. The courts will always rule by the letter of the law, and the letter of the law will never be able to effectively describe music, let alone silence or flute riffs from a children's song. And so we await the next the case of sketchy plagiarism...and the way things are going, we probably won't be leaving the porch light on for too long. 

What do you think about the Men at Work V Larrikin copyright case? Let us know in the comments section below; best response wins an e-pat on the back.