You can find the background to this story here…
The gist however is that the writers of the massively popular Australian song Down Under were accused of stealing a melody from the old Aussie folk song Kookaburra Sits in the Old Gum Tree. They didn't use it as the main melody of the song. It doesn't open the song. It appears briefly in a flute solo nearly one minute into the song, and then only around 20 notes or so.
Despite the near-irrelevance of the inclusion of Kookaburra in Down Under, the copyright owner of Kookaburra took Down Under writers Colin Hay and Ron Strykert to court asking for 60% of their total earnings from the song.
Clearly Colin Hay and Ron Strykert have made a lot of money from the Down Under. But did 60% come from the inclusion of a mere fragment of Kookaburra? In any case, they have probably spent the money by now and to be asked to pay back 60% would probably bankrupt them.
But thank heavens for sense and reason.
An Australian court has now ruled that Hay and Strykert must only pay 5%, and then only from earnings since 2002. Even so, this will probably cost them many thousands of Aussie dollars.
So what does Audio Masterclass think of this?
- Although 5% since 2002 is a lot less than 60% of all royalties, the twenty or so notes from Kookaburra form very much less than 5% of Down Under.
- This ruling establishes a 'profit line' for publishers who find any notes from one of their songs in the work of another writer. It will now be possible to calculate whether it would be profitable to take a songwriter to court, taking into account the 50/50 chance of the judgment going the publisher's way.
- The writers of a successful song can now expect to be sued for breach of copyright. There are only twelve different notes so whatever melody you write is certain to have been written before. If you write a successful song, you should put aside a percentage of your earnings to cover future claims.
By the way, the writer of Kookaburra is long dead so she will not profit from the judgment.
But there is a positive side to the judgment…
Almost implicit in the Australian court's ruling is the thought that a songwriter can now deliberately consider using part of another copyright work in their song. If 20-odd notes cost 5%, then a songwriter can calculate how much they can expect to pay.
RecordProducer.com's position is that songwriters and composers should be legally entitled to re-use parts of pre-existing copyright works, on payment of a statutory royalty, the percentage to be governed by the respective proportions of original and non-original content, and how important they are to the marketability of the song.
In truth, it is impossible to compose a piece of music without somewhere using a combination of notes that someone else has used previously. So why go to court every time there is a problem when the issue can be dealt with fairly when a new song is first published?
Of course, this is a big subject and we couldn't possibly cover every angle in these few paragraphs. However, this case has highlighted the fact that there is a genuine problem here that needs to be solved. And it needs to be solved fairly for both writers and publishers.
And let's keep the lawyers out of the equation.
What right do lawyers have to make money out of music?