All the hoo-ha about Men at Work’s “Down Under” and its reference to the “Kookaburra” round has reminded me of another flute riff.
Listen carefully at 2'01".
Whose publisher will be suing orchestrator Jonathan Tunick, and which symphony has been quoted?
A [long] postscript…
Although I didn’t follow the Kookaburra/Down Under case especially thoroughly or with anything approaching legal expertise, I read enough to find the result disturbing.
First, many musical people didn’t notice the similarity until it was pointed out to them – I know I didn’t. One of the reasons for this is that the melodic idea in question is fragmented and combined with other motifs, another is that it’s so fleeting. [Sorry Dr Ford, the reason school children don’t sing “Kookaburra” at the tempo of “Down Under” has nothing to do with their “age and ability” and everything to do with their good musical instincts – the round would be ridiculous and unsatisfying if sung that fast.]
Another, much more important, reason for the melodic similarity passing unnoticed is that the harmonic context is quite different. Not only is there a change from major to minor tonality [which is not the same as transposing something to a new key in the same mode, even a mug like me without perfect pitch can hear that], but the chords in relation to the home key and the harmonic rhythm in relation to the melody are different in each case. We do hear and recognise themes in their harmonic contexts.
Of course, just because a quotation remains largely unnoticed at first, including (it seems) by its performers, doesn’t make it more or less right. I recognise that. My point is that the melodic similarity went unnoticed because the motif was so radically changed in the process of incorporating it into the song, apparently to the extent that the creator of the riff didn’t register at first what he’d done. So at what point does copying stop and originality begin?
For example, the first six notes of opening theme in Mahler’s Blumine follow the same contour (in the same key) as the big tune in the finale of Brahms’ First Symphony (about 8 minutes in). So is that theft? Was Mahler even aware of the similarity before they pointed it out on Spicks and Specks? (Possibly not, although some have proposed this as a reason for him removing the movement from his own first symphony before it was published.) Should Simrock have sued? At least one of my colleagues dismisses the similarity as an inconsequential coincidence, yet it’s much closer than the similarity between “Kookaburra” and the “Down Under” flute riff.
A better comparison, perhaps, is Stravinsky, who used the music hall tune “Elle avait un' jambe en bois” in Petrushka, mistakenly thinking it was a folk tune in the public domain. He ended up having to pay a royalty to Mr Emile Spencer every time Petrushka was performed. But that seems fair: Stravinsky uses the tune in full and in a recognisable way. You could say he appropriates it. I’m not sure you could say that of Men at Work and “Kookaburra”.
My completely inexpert response is that a tiny quotation (tiny in absolute terms, not the proportional terms the lawyers are using†) that is so thoroughly reworked and adapted into the fabric of a song becomes a fresh idea of its own. Any relationship to the original – to the extent that this is conscious or even recognised – is one of tribute, not theft. A quotation like this in no way diminishes or detracts from the original nor does it establish itself as a replacement for the original song (which might then have deprived the copyright owner of income). That’s why the decision seems to me both unfair and a blow to creativity.
† Part of the problem in the Kookaburra/Down Under case is that what would have been 4 per cent if quoted from a typical pop song (and maybe 0.05 per cent of a 19th-century symphony), turns out to be 25 per cent of a four-bar singing round. Suddenly four beats of music is a “substantial” as well as substantive portion.
A post postscript…
Did anyone else notice that iTunes is selling “Down Under” for AU$2.19 while all the other songs on the Men at Work albums are the regular AU$1.69? Curious.