Kookaburra fossil exposed

A couple of months ago Felix at The Growlery had a post, Kookaburras and other fossils, about the words of an Australian folksong that was current in English schools in our childhood. Felix's version was this:

Kookaburra sits in the old gum tree
King of the whole wide bush is he.
Laugh! Kookaburra, laugh!
How gay your life must be.

Small world: see BBC News for Men At Work face plagiarism case, concerning the highly recognisable quote from the Kookaburra song (which, in the variant I know, sounds like this - reproduced as fair use) in a flute riff in Men at Work's number one hit Down Under (listen at 0:52 and 1:55 in the video here).

I'd always assumed the kookaburra tune to be traditional, but the legal issues arise from it being relatively modern, written by Marion Sinclair for a competition run by the Girl Guides in 1934 (see Wikipedia). There are many variants, including parodies, but this one appears to be definitive. Larrikin Music claimed copyright breach. As this Sydney Morning Herald article said - Riff row leaves Men at Work up a legal gum tree - it initially seemed moot who actually owned the copyright, but today the Federal Court of Australia ruled that Larrikin owns the rights to Kookaburra: a preliminary ruling that allows the case to proceed. Seems overkill to go to litigation over a witty in-quotation of a theme that isn't central to Down Under, and which has become so ubiquitous in the English-speaking world (see YouTube) that ownership is virtually never considered. LawFont.com goes into the ruling in more detail - Kookaburra sits in the courtroom - noting that it's remarkable that it took 27 years for anyone to notice, particularly given that Down Under was "immensely successful" while Sinclair was still alive and asserting her own ownership of the copyright. As a commentator notes, this raises the possibility of a defence of laches: the argument that an opposing party has "slept on its rights" and is no longer entitled to make the claim.

Such situations can be very convoluted. See the Social Sciences Research Network paper Copyright and the World's Most Popular Song (Robert Brauneis, George Washington University - Law School, GWU Legal Studies Research Paper No. 1111624) - click Download link for full PDF paper - about the musical and copyright history of Happy Birthday to You. Despite Warner/Chappell Music claiming hefty royalties in cases of performance for profit, Brauneis makes a strong argument that the copyright trail is so messy that Happy Birthday to You

is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.

Addendum: Whatever the rights and wrongs of this case, I'm fairly baffled by the number of people saying they hear no resemblance (for instance, in the comments to this news item on YouTube). Maybe they're listening to the wrong part? Maybe it's confusing that the backing has been shifted to the relative minor? It's a clear quote of the first two lines of the Kookaburra song.

Update, February 2010: Men at Work plagiarised 'Down Under' riff ("Flute melody taken from 1935 'Kookaburra' children's song, Australian court rules", Kathy Marks, The Independent, 5 February 2010). This means Men at Work potentially owe millions to the copyright owners, Larrikin Music. See the previous Kookaburra fossil exposed for background. Personally I think the result stinks, and that the quotation in question, a tiny riff between verses, was nothing more than a nice homage to a tune that had become de facto public domain due to its obscure copyright status. Quoted in The Age, the founder of Larrikin Records and original owner of Larrikin Music, Warren Fahey, says exactly this:

He recommends the copyright owner, Larrikin Music, should "gift" the song to Australia, arguing that most Australians believe they already have public domain ownership of the song anyway.

"The past week has seen thousands of emails, letters to the editor, radio commentary and internet forums criticising the judgment," says Fahey, who sold Larrikin Music to Music Sales Corporation in 1988 and whose folk band is called the Larrikins.

"Many of these incorrectly criticise Larrikin Records and myself as the protagonist, asking, 'How could someone so dedicated to Australian music do such a thing?' The Larrikin brand has certainly been tarnished by what many see as opportunistic greed on behalf of Larrikin Music/Music Sales."

- Ray