Did you know that little bit of ‘inspiration’ you borrowed from another artist while composing your own song could land you in hot legal trouble? How would you respond if you found out your music was being played on commercials in another country without your consent? Is that illegal? This explainer aims to arm musicians with the copyright law information that affects them, both in and outside of Australia, as well to advise them on how to avoid being sued for breaching copyright law themselves.
Tame Impala v Mengniu Dairy Company
When Your Song Has Been Rerecorded and Used Commercially
According to knowledge base Music In Australia, owners of copyright in musical works, such as songs, have the exclusive right to reproduce their music. They are also the only ones that have the right to create or approve of an adaptation of their music. Both these rights were breached during an instance of copyright theft that occurred in 2017 when Mengniu Dairy Company, located in China, released a commercial that featured an unsolicited rerecording of Australian musician Tame Impala’s international hit-track The Less I Know The Better.
Below is a recording of the commercial in question by Mengniu Dairy Company, which features the rerecorded version of Tame Impala’s The Less I Know The Better.
Here is the original song
Who Can Help?
The similarities between the two are quite obvious but what isn’t as obvious is knowing how to respond legally when a company overseas has illegally reproduced your music without permission.
APRA AMCOS (The Australasian Performing Right Association and Australasian Mechanical Copyright Owners Society) are a music rights organisation that use their website to help aid musicians with information regarding the code of ethics they should abide by when it comes to copyright law, as well as ensuring that musicians are paid when their music is used overseas.
They make it clear in their FAQ section that works protected under Australian copyright will be protected in most countries worldwide, such as those that are members of the World Trade Organisation (including China).
The Australian Copyright Council, in a detailed information sheet, tributes international treaties such as the Berne Convention for the reason why it is not necessary to register your work in other countries in order to have your music copyright protected overseas. They go on to state that the general rule is that the first owner of copyright in a music work is the composer.
What Went Down
Kevin Parker, the man behind Tame Impala, initially responded by sending a takedown notice online to Mengniu Dairy Company. Musicians should also know they can seek out support from the company that (legally) publishes their music. Kevin Parker did exactly that by informing Sony ATV Australia of the commercial, who then stated that they had not given permission for Mengniu Dairy Company to use The Less I Know The Better in their commercial, thereby bolstering Kevin Parker’s claim.
What to Take Away from This Case
The similarities between the two songs are undeniable and it is not known how this case of copyright theft concluded. However, it remains a relevant example because it highlights how important it is for musicians to speak out when they know their music has been stolen internationally. It also acts as a reminder for both musicians and those working in all facets of the music industry that there are indeed copyright laws that stop original compositions from being stolen or exploited.
Copyright claims for music don’t always have to be over an entire song, or even a single section, they can even be for something as small and specific as a single flute riff that only lasts a few seconds. The following case is important for musicians in understanding how to avoid copying other artist’s work and breaching copyright law.
Men at Work v Larrikin Music
In 2009, Larrikin Music, a record publishing company, claimed that the 1980’s chart-topping hit Down Under by Men at Work includes a flute riff that was stolen from the popular Australian children’s track, Kookaburra, a song that Larrikin Music owns the rights to.
The similarities between the two were initially observed on the hit music quiz show, Spicks & Specks. A panel member made the comparison between the two songs, which can be seen 25 seconds into the video below.
This casual comparison was noticed by Larrikin Music and set off a chain of events that led to Larrikin Music presenting a lawsuit against Men at Work for copyright infringement.
Wait, Kookaburra was composed in 1932, doesn’t that make it public domain?
Copyright in a sound recording lasts for 70 years from when it was first released, so it does seem quite preposterous that a legal case would begin over its ownership in 2009, and a copyright lawsuit over its usage the following year. However, copyright in music and lyrics lasts for the life of the artist plus another 70 years. Marion Sinclair wrote Kookaburra in 1932 but passed away in 1988.
Kookaburra is a song so well cemented in Australian history that most people, before this copyright case began, assumed it to be public domain already. This perspective is so commonplace that the original founder of Larrikin Records, Warren Fahey, believes that Larrikin Music, the company he once owned, should ‘gift’ the song to Australia, officially making it public domain.
Instead, after being ruled as the copyright owners of Kookaburra by a Federal Court in 2009, Larrikin Music were now in a position to sue Men At Work for copyright infringement.
The Legal Consequences of Breaching Copyright Law in Music
In 2010, Federal Court Judge Peter Jacobson ruled in favour of Larrikin Music, agreeing that the flute riff in Down Under constituted a reproduction of a substantial part of Kookaburra, therefore infringing the rights of Larrikin Music under the Copyright Act 1968. He ordered Men at Work songwriters Ron Strykert and Colin Hay, as well as their record company EMI Songs Australia, to pay 5% of royalties earned from Down Under since 2002 and from any future earnings.
This ruling did not give Larrikin Music access to any royalties earned before 2002 because of a statute of limitations. This is important to note because, despite the popularity of the song persisting through the years, it was a mainstream success in the early 1980’s. While Larrikin Music won the copyright case, they did not receive anywhere near the 60% cut they were hoping for, nor did they receive royalties from the two most popular decades of the song’s existence.
The Ongoing Effects
Copyright cases around music can be long and arduous, due to the long-term repercussions for every new ruling made. Men at Work member Colin Hay claimed the stress brought on by this lengthy court case contributed to the deaths of both his father as well as his fellow bandmate, Greg Ham.
In an interview with ABC Radio, Hay stated that the result of this case could “restrict musical creativity”, while Terry Noone of the Musicians Union of Australia, in the same article, speculated that this case could broaden the very definition of music copyright.
How a Breach of Music Copyright is Determined in An Australian Court of Law
A failed appeal by Men at Work and EMI Australia in 2011 over the ruling of the copyright case shined a light on the confusion over how copyright in music is determined. In the transcript from the hearing, one of Men at Work’s main argument related to how Judge Jacobson had analysed the two songs to determine whether Down Under infringed on Kookaburra’s copyright. Men at Work believed that the part they used from Kookaburra does not play an important role in Down Under. They argued that, because the segment stolen was of little importance, that they shouldn’t have to share royalties with Larrikin Music.
The High Court rejected this, believing that the issue relates to whether the riff Men at Work stole from Kookaburra is an important part of Kookaburra, and that it doesn’t matter how important it was to Down Under, just that it had been used at all.
Another argument brought forward by Men at Work was that the flute riff heard in Down Under was supposed to pay tribute to Kookaburra. This brings up the question as to whether a song (or in this case, part of a song) can be classified as a ‘tribute’ as opposed to have being stolen. Justice Gummow shot this notion down immediately, believing it to be irrelevant whether it was done to act as a tribute or not. If the riff was stolen, then the intent of why it was stolen does not matter.
What to Take Away from This Case
This case put music copyright law to the test and proved that stolen sections of music, big or small, are all taken very seriously in court. Men at Work will continue to suffer the financial consequences as long as Down Under continues to be played. This should be enough to deter musicians from directly stealing musical ideas under the guise of inspiration and will no doubt influence future court cases regarding music copyright theft to come.
Ben Nicol 