Down Under

January–February 1983

No, Men at Work weren't around in 1959 – they probably would have frightened people. I'm jumping to early '83 when the Australian group took over the world (briefly) with the whimsically patriotic smash hit "Down Under." Why would I do such a thing? Am I not disrupting the order of the cosmos by interrupting the chronology of this blog? Maybe I am. But you may have noticed this song in the news a few days ago, and so I figured it would be timely to cover this song out of order.

A court has recently ruled that, in "Down Under," Men at Work plagiarized a 1934 song called "Kookabura Sits in the Old Gum Tree" by Marion Sinclair (the song has since been bought by a company called Larrikin Music). "Kookabura" is apparently considered somewhat of a national folk song in Australia, and, like "Happy Birthday" in the U.S., most people are probably not aware that it is copyrighted. But nevertheless, somebody does own it, and that person has sued and won. Here's the story from the BBC.

The article has audio clips of both songs, for your comparing convenience. The part in question is the flute refrain that plays in the beginning of the song, and then again after each chorus. It's pretty clear to me that this tune is an intentional reference to "Kookabura," especially given the context of the song – the lyrics are loaded with references to Australian culture, and so here's a subtle musical reference as well. It's actually pretty clever – most people won't even notice it, but those that do notice it will have an "a-ha!" moment.

Intellectual property laws serve a great purpose, which is to protect original ideas. A competitor who isn't allowed to simply copy an idea is now forced to come up with a new one – and thus innovation is encouraged in our society. Compare this to a country like China, where there is practically no enforcement of these laws, much to the dismay of foreign companies who watch helplessly as their products and logos are ripped off ubiquitously. Here, search the web with Gougou, or crack open an ice-cold Laoshan Cola. When it's that easy to copy your competitors, there's no reason to come up with anything new, and there's no progress.

But an unfortunate byproduct of these laws is that they often allow frivolous lawsuits like this one. Is the snippet of melody taken from "Kookabura"? Of course it is. But come on, people. I highly doubt that the song's success would have been any different if the flute refrain had been changed. In fact, this brings up two fundamentally different situations in which an artist uses a piece of another artist's music. The first is what Men at Work are accused of: taking a piece of music and passing it off as your own. The other is what Men at Work actually did: referencing a piece of music. The listener is not meant to think that Men at Work wrote the famous Australian folk song. And there is a chasm of difference between these two things. One is okay, and the other is not okay.

But to me, the most frustrating thing about this case is the remarks made by Colin Hay (a member of Men at Work). From the BBC article:

"It is no surprise that in more than 20 years, no one noticed the reference to Kookaburra... it was inadvertent, naive, unconscious... by the time Men At Work had recorded the song, it had become unrecognisable. It may well be noted, that Marion Sinclair herself never made any claim that we had appropriated any part of her song Kookabura... Apparently Marion Sinclair didn't notice either."

...Huh?

So he's denying the similarity between the two songs? The obvious truth is that the group, along with most of the population of Australia, assumed that the folk song was in the public domain (as it, quite frankly, should be by now). The band referenced it in their song (remember – referenced it) without giving it a second thought, just as you would have no problem referencing "America the Beautiful" or something. In this case, the law is on the wrong side, and I understand why he would have to tell a white lie in court, in his own defense. But come on man, the trial is over. Stand up for yourself.

Anyway, none of this takes away from the fact that it's a great, classic song, and lots of people love it, including myself.

All right, stay tuned. Next it's back to scheduled programming!

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