Sunday, July 5, 2009

How old does the old gum tree need to be?

The music publisher Larrikin has sued Sony and EMI, claiming that a flute motif from the 1981 hit song "Land Down Under," by the band Men at Work, was copied from Marion Sinclair's 1934 children's song "Kookaburra sits in the old gum tree." Marion Sinclair died in 1988. Australian copyright lasts for 70 years after the death of the author for authors dying in or after 1955. If the copyright in Sinclair's song is computed in this way, it will expire on January 1st, 2059. Larrikin claims that it purchased this copyright from Larrikin's estate after her death. The Sony and BMI response is that, since Marion Sinclair wrote the song for a contest sponsored by the Girl Guides, it is the Girl Guides who are the owners of the copyright, and they have moved that the case be dismissed on this basis. The New South Wales Federal Court is expected to rule on this question soon.

Story in the Brisbane Times here.

The accused song can be heard here:

Note that, if the duration of Australian copyright had been 50 years from publication (the norm of the Universal Copyright Convention) "Kookaburra" would have entered the public domain on January 1st, 1985. Had it been a generous 56 years from publication (the U.S. term prior to 1978) "Kookaburra" would have entered the public domain on January 1st, 1991. The Men at Work could have copied from it freely (if that is what they did) without a need to license any quoted passage, and released their song without worry not long after they actually did. But because the duration of copyright has now been extended to absurd lengths, and its scope is taken to reach even to short musical motifs, we now have an example of a song deeply embedded in popular culture that cannot freely be quoted by other musicians until a hundred and twenty-five years after its first appearance. This is, quite frankly, too long.

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