Long Blog?Men at Work copyright decision.

Long Blog?Men at Work copyright decision.

I feel compelled to say something about this especially as the successful litigants are hailing ?a big win for the underdog.?

On the other side of the coin songwriter Colin Hay is quoted in this morning?s Otago Daily Times (6.2.10, p 6) as saying, ?I believe what has won today is opportunistic greed, and what has suffered is creative musical endeavour.? There?s a big gulf of opinion here. On the basis of the evidence as far as I can gather (compare the sound bites in the above link) I can see no basis for entitlement to 60% of the royalties as claimed the successful party might be awarded.
    Hay admits in the ODT that the flute player used two bars of ?Kookaburra? but describes it as a ?musical accident.? (Who will ever trust a session musician to ?improvise? on their track again for the fear it will end up in court?). It is clear from this that he placed all his faith in lawyers and did not seek the services of a musicologist (idiots), for demonstrably only one bar replicates the earlier song (the first bar of each?the second is quite different). Why am I going in to bat for a convicted music thief, you might ask? Because I believe the decision is dangerous, counter-creative, and ahistorical.
    Composers quote each other and/or themselves; it is a time-honoured tradition of public or private communication. Take Shostakovich?s 8th String Quartet, his most played work in that genre probably eclipsing the other fourteen put together.
It is made up almost entirely of quotations, of his own music and others.

It begins with a fugue on the notes d, e-flat, c and b. This in itself is code. Via German pronunciation and musical practice it spells DSCH, (himself?Dimitri Schostakovich). He had used this musical signature at least twice before (in the Tenth Symphony and before that his First Violin Concerto). At around the six-minute mark of the above link he quotes his own Second Piano Trio (music ostensibly about Jews in WW2 being made to dance beside their own graves before being consigned to them with a bullet). Immediately after this he quotes Mahler?s ?the Farewell? from The Song of the Earth. Why? The Quartet is about leave taking (he was suicidal at the time) and the Mahler quote reinforces this (though a more tortured farewell it must be said), whilst the Trio quote self identifies as a victim of fascism. Later in the work he quotes the 19th century revolutionary song "Tormented by Grievous Bondage" (read Soviet censorship). And there are many other quotes besides from many works. To follow the logic of the judge in the M@W trial the world would be robbed of one of the twentieth century?s greatest artworks. What would there be to stop the publisher of the Trio, Symphony, and Concerto, Mahler?s work and the revolutionary song suing for a breach in copyright in the Quartet (lets be hypothetical and assume each work is in the hands of a different publisher and none in the public domain and each litigant claimed 60% of the royalties)? To do so would be absurd, even immoral perhaps, but by the same logic as demonstrated in the M@W case, it would appear it could have happened if Shostakovich lived in more litigious times. What case could be made against copyright litigation? Simply that although the Quartet is made up almost entirely of quotes it does not in any sense attempt to pass itself off as any of the other works in its entirety.  Does ?Men Down Under? attempt to pass itself off as the ?Kookaburra Song? in its entirety? Not in my opinion.


Frisch weht der Wind
Der Heimat zu
Mein Irisch Kind,
Wo weilest du?

Who wrote it? Wagner. It is part of the libretto to his opera Tristan and Isolde. From where did I quote it? T.S. Eliot?s poem ?The Wasteland?. Like the Shostakovich quartet ?The Wasteland? is a work littered with quotes or allusions to other people?s literature. If the ?50 years after death? copyright law was in place (I don?t know if it was back then, but again lets be hypothetical) Eliot was clearly in breach (Wagner died in 1883, the poem published in 1922). Again if today?s lawyers and publishing houses were given free reign, the 20th century would have been robbed of one of its (many would say most) important works if the copyright holders of all those Eliot alluded to claimed 60%.


Popular music

The Marseillaise, one of their earlier songs (not on this version but the studio recording), some Bach, Glen Miller (?In the Mood? at 3.01, still under copyright at the time I would have thought) and that ya-ta-da-da-da sax line is so cheesy and brilliant someone must have stumbled across it before them (Wikipedia lists other quotes as well). Point taken?

Lets be perfectly clear that artistic practice is not on trial here in the M@W case. Only the good fortune to have made large sums of money from a song is. Whether deliberate or accidental, collage is, in a moral sense, totally legitimate. Some of humanity?s greatest artists have practiced it to telling effect as I hope this blog has shown. And they gain their artistic legitimacy by dint of the fact that their borrowed materials creates something new, works that do not attempt to pass themselves off as someone else?s work. On this basis the decision in the M@W case flies in the face of common sense and history and points to a world full of lawyers and devoid of musicians.
    For truth be told, far more egregious examples of ?passing off? go largely unpunished, for example one by the political party that now forms the government in New Zealand, with culpability possibly extending right up to the prime minister himself (the backing music in the 2007 National Party promotional DVD that, in my opinion, was a reworked, yet utterly recognisable, version of Coldplay?s ?Clocks?). There was no ?conviction? in this case, merely the withdrawal of the DVD. No matter that Chris Martin might have been appalled his work was used in this fashion and for the purposes of political propaganda (which may be antithetical to his own world view) he either never got to hear about it, or his record company decided there was no money to be made in prosecuting it. But in the process we the people have been robbed of a benchmark precedent in case law to which the M@W case could be compared, and against which thrown out as ludicrous.
    For how much, in truth, has ?Man Down Under? passed itself off as the Kookaburra song? Rhythmically identical for one bar is a given. But because they did not hire a musicologist, (or hired a poor one), they obviously failed to mount any decent argument about the differences. The song in its original guise has a childlike simplicity to it (it was written for a Girl Guides competition after all) and begins on scale degree 5 in a major key and utilises the pentatonic version of this scale in the bar in question (for non-musicians, play the black keys only on the piano and you will find this scale?it is a staple of popular music, simple and limited in the number of note combinations, and as such there is a very low threshold of originality surrounding its use). Pentatonic major is useful for bright, happy, uncomplicated, childlike things and as such is perfect for a children?s song (I guarantee without knowing a bar of their music, that the Wiggles use it extensively). But the Men at Work song is in a minor key and the flute melody begins on scale degree 7 relative to it. Whilst it shares pentatonicism (sorry for the big word, equals using the pentatonic scale) with the ?Kookaburra? song, it is in its expressive demeanour, quite different.

What does the flute melody contribute, evoke, express? In its minor-key pentatonicism it is so unlike the major pentatonic scale of the original that it is closer to blues than major-key folk. And what does blues often evoke? Masculinity and sexuality? In short ?Man down under? is a celebration of blokedom (any song with the line ?where beer does flow and men chunder? in it can hardly be about anything else) and as such has no real use or place for the child-like simplicity of the original and it seems to me precisely in this M@W do not attempt to pass off the Kookaburra song. The flute melody expresses, in my view, a dark potency in keeping with the sexually suggestive lyrics (the plundering seems implied, in the context of the first verse, to be of a sexual nature). In short ?Man Down Under? has little need of the essence of the ?Kookaburra? song and in fact avoids that essence. We are essentially left with one bar of rhythm being responsible for a decent, hardworking musician being potentially stripped of 60% of the revenue derived from his labours. I cannot in any sense see any justice in this, especially when laid against more egregious instances as noted above. So yes I side with the songwriter. This is about greed, is counter artistic expression and sets a very dangerous precedent. If one bar of rhythm is copyrightable, then every composer on the planet is in peril.

For further reading on how complexes of words can mean different things in different contexts I recommend ?The problem of speech genres?, by M.M. Bakhtin. His concept of the utterance applies equally to music I feel, or better to say that music and language achieve themselves from a limited stock of building blocks (notes or words) that will appear time and again in different utterances. It is the relationship between the words or notes in the entirety of the utterance wherein originality resides. The judgement in the M@W case is perilously close to copyrighting a word, or a phrase, or a rhythm.

If anyone reading this knows Mr Hay and co, please direct the contents of this blog to them. If they want me on their defence team for a high court appeal, I?ll be much cheaper than a lawyer.


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