I Got A Kookabura

So, I have to admit that trying to wrap my head around some concepts in copyright is very hard for me. Reading Jessica Litman’s book Digital Copyright, I was a little blindsided by some of the technical descriptions of the history of copyright – my eyes glaze over whenever I see case numbers or committee names – and also by her “ranty” style. I am having a much easier time understanding what James Boyle has to say about copyright in his book, The Public Domain. While I’m still not finished, I can say in general terms that I enjoy his style which includes lots of paraphrasing, showing that he has patience for readers like me who might not get it the first time around.

I also like Boyle’s focus on what strong copyright laws and precedence in interpreting those laws can mean for culture. In chapter 6 of the book, “I Got a Mashup,” he documents the history of Ray Charles’ song “I Got a Woman” from gospel tune to 21^st century mashup (with stop offs at Kanye West’s “Gold Digger,” the Legendary K.O.’s “George Bush Doesn’t Care About Black People and Youtube videos by The Black Latern and Franklin Lopez). The point to this example is that things in art and culture, both great and small, come from being able to freely make use of and transform those things which have come before.

 In some respects, “I Got a Woman” might be considered a success story; it grew and transformed into new works, even in recent year and in spite of copyright. And as far as my knowledge goes, no one has yet been sued for copyright infringement regarding “I Got a Woman.”

Contrast this with what I consider a case where copyright has failed us: the Men at Work song, “Down Under.” (Huge disclaimer: I do not know the particulars of Australian copyright law. For the sake of argument, I am going to assume they are analogous to U.S. copyright law. Any similar case could take place in the U.S., and as a case study, I think it points out some flaws in our system.)  

It was just announced today that Men at Work lost their final appeal against the copyright infringement suit brought against them by Larrakin Music for copying two bars of a traditional Australian song composed in 1934 by Marion Sinclair, “Kookaburra Sits in the Old Gum Tree.” (See the most recent article here: http://www.bbc.co.uk/news/entertainment-arts-15212096 , although there is much more background about the case in this article, which I will be quoting from: http://news.bbc.co.uk/2/hi/entertainment/8499973.stm )

I will just expound briefly upon one of the problems that I have with this case and what it illustrates that is damaging about copyright law when we let it get extended for long periods of time. If we are to assume that copyright is meant to further the arts and sciences (which is indeed what U.S. law says is its goal) then we should be concerned that in this instance, the person who is responsible for composing “Kookaburra” is deceased and that the infringement case is being brought against Men at Work by a company twenty years after the songs original release.

In this case, the copyright for the song “Kookaburra” was bought by a company after the composer’s death. (Query: Was it part of the estate sale?) I think this is a shame though; I find it slightly exaggerated that companies (and even individuals) can buy and sell copyright like they do stocks. To me, this shows that far too often copyright is about economics and protecting a financial investment instead of encouraging intellectual production. In this particular instance, defending the copyright of “Kookaburra” has nothing to do with protecting the bundle of rights that Marion Sinclair had as a composer to encourage her to create more content – she has passed away. The copyright to her song is a commodity, which I don’t think over twenty years after her death, nor twenty years after the release of the so-called infringing song, should be allowed to exist. 

In fact, the owner of Larrakin Music is unapologetic in acknowledging that this is just about money: “Mr Lurie told Melbourne newspaper The Age: ‘Of course it would be disingenuous for me to say that there wasn't a financial aspect involved, [but] you could just as easily say what has won out today is the importance of checking before using other people's copyrights.’” 

While what Mr. Lurie says is true (today it is important to check before using other people’s copyrights), unfortunately, his claims seem all the more preposterous when you realize that “Down Under” was a song released in 1981, and Mr. Lurie’s company only bought the rights to “Kookaburra” in 1990. As Colin Hay (composer of “Down Under”) notes: "… Marion Sinclair herself never made any claim that we had appropriated any part of her song Kookabura..." 

It seems to me that if original composers, creators and writers have no objections to appropriation (conscious or otherwise) of their material, it flies in the face of the original spirit of copyright law and intellectual production to allow a company or corporation with an acquired copyright to sue after the fact.