Copyright And Intellectual Property – A Case Of Overkill

Two pieces of information I’ve received in the last 24 hours prompted me to open a discussion on Libertarianism and intellectual property rights. Firstly, the tragic death yesterday of Australian band Men At Work’s multi-instrumentalist Greg Ham, in his suburban Melbourne home at the age of 58. Responsible for the distinctive flute introduction to our unofficial national anthem Down Under (which by a strange coincidence I posted in the Juke Box only two days ago), and the saxophone hook for Overkill above, Ham’s life was wrecked by a plagiarism case two years ago.

It started on a 2009 episode of the music trivia show Spicks and Specks on ABC-TV, in which the question was asked, Which 1980s hit Aussie song featured a flute riff containing the tune from Kookaburra Sits in the Old Gum Tree? Answer: Down Under. Strangely, in nearly thirty years since it was released, no-one had ever noticed it; I know I didn’t. But that didn’t stop Larrakin Music, the publishing house that held the rights to Kookaburra, from seizing this new-found information and promptly suing Men at Work for a slice of the profits. Down Under was one of a string of hits from the 1981 album Business As Usual, which went to #1 in the USA and sold 15 million copies worldwide. Sadly, Larrakin won a judgement of 5% of all royalties backdated to 2002 (down from the 60% they were originally seeking, backdated to 1981).

The ruling shattered Ham, who wrote the song with guitarist Ron Strykert and Colin Hay; he is quoted as saying, “I’m terribly disappointed that that’s the way I’m going to be remembered—for copying something”. His life went downhill, his marriage broke up and he sought consolation in heroin and alcohol. Friends found his body yesterday in his home after failing to make contact for three days. Only a few weeks ago Scottish-born lead singer Colin Hay reflected on how ridiculous it all was:

Then this morning in the Mises Daily, there was this article by Doug French, From Innovation To Rent Seeking, which examines the effect of patent law has on stifling creativity, particularly in the high technology sector. Major companies which started out as innovators of new technology have often been reduced to collectors of patents, unwilling to develop most of them but ready to sue anybody else who does. Do go and have a read, and let me know your thoughts.

I’m swamped with work right now, and will be for the next week or so; so I’m unable to give you a detailed run-down on my own opinion. I do get frustrated when I try to share a YouTube clip with friends in Europe or North America, only to be told that it won’t load for them due to copyright zoning barriers, invariably put up by the major record labels. I would say that it’s likely that technology will inevitably overtake and cut out the middle-men, with less and less layers between producer and consumer. Online shopping is one manifestation of this, much to the chagrin of bricks-and-mortar retailers, who are increasingly discovering they must get online themselves, or watch their business shrink and die. But are we losing value by this, or gaining efficiency?

Over to you.

Update 15 June 2013: Courtesy of Catallaxy Files, here’s a British take on the issue:

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11 Responses to Copyright And Intellectual Property – A Case Of Overkill

  1. Kitler says:

    I did compare the two and there definitely is a similarity there, I don’t think it was intentional though just someones sunconcious creeping in and it’s a faster temp. Pity it destroyed his life and oveshadowed their work. This mess all started when hip hop/rapper artists sampled a few bars from other popular works to create unique works. There were a number of big court cases in the 90’s over this and they ended up owing royalties.

  2. Dr. Dave says:


    I wish I could remember the particulars to this story…I’ll have to search for it. I believe it all started right after WWII. A guy would dream up ideas but never develop anything. He would just trot down to the US Patent Office and get his idea patented. He would then “hide in the weeds” until someone actually invented something and then leap into legal action and sue for patent infringement. This guy never invented a damn thing. One of the more famous cases was “remote sensing” (at least I think that’s what they called it). This guy patented the idea of remote sensors monitoring manufacturing processes. Eventually somebody actually invented this and made a fortune. This guy swept in and legally stole about half the royalties because he had patented a vague, ill-defined “idea” many years before – before any such technology existed. This guy held over 100 patents and never “invented” anything. I believe there have changes to the US patent laws specifically because of this guy’s lawsuits. As I understand it one can no longer patent an idea or concept and then wait for somebody else to develop it and then sue.

    Patent law in the US varies all over the place. For instance, as far as I know nobody tries to patent a new medical or surgical procedure. The big motivator is credit for the development and the prestige. Drugs, devices and certain other forms of medical technology are patented like crazy. Drugs are a special case and I’ll address this issue in a separate comment.

    My Dad was an audio electronics engineer in the days of vacuum tubes right up through solid state but retired before the era of microprocessors. He would tell me stories about various patents in his field. Quite often a patent remains in effect long after the technology has become obsolete and has been replaced. The same is often true for software. I remember Lotus suing over functionality and “look and feel” when a number of competitors entered the market.

    Copyrights, on the other hand, are an entirely different animal. I would imagine it would be damn difficult to write a “new” song these days without inadvertantly impinging on a copyright. More on this later…

  3. Dr. Dave says:


    I would never have picked out Kookaburro from Down Under. I can hear it now but it’s not abundantly obvious in context. I would even argue that the flute riff is similar but not an exact match. A very long time ago when I played in a band we did a song by a relatively obscure band called Mason Profit. The song was a truck driving song entitled “Hard Luck Woman.” I loved the lyrics. “I pulled my Diamond Reo into a truck stop down the road. I asked for toast and coffee and the waitress told me no…” I was riding around with a friend of mine and this song was blaring on the cassette deck. Danny looked over at me and said, “You realize that the music is just a slightly slower version of The Wabash Cannonball.” No, I had NOT realized it but that’s what I hear now every time I listen to the song.

    The most famous case I can think of is the George Harrison and the Chiffons dust up over “My Sweet Lord” and “He’s So Fine”. I had older siblings so the 45 of the Chiffons was in the basement (where kids’ music had to be played). I was pretty familiar with the song. I had listened to George Harrison’s “My Sweet Lord” I don’t know how many times and never made the connection. In context they’re entirely different songs but they do indeed share some notes and basic musical construct in a few places. Here’s the Chiffons:

    Here’s George Harrison:

    It’s not too hard figure out how this case was decided. Aging, washed up, poor black female former Motown singer vs. white, British, ultra-wealthy former Beatle. It cost Harrison a tidy sum. I can listen to both songs now and hear the similarities but to me they remain entirely different songs. It’s impossible or at least “wrong” to copyright every single riff in every song. Elvis Presley’s “Love Me Tender” is actually the much older “Aura Lee.” Every blues, rock or bluegrass song builds on the songs, sounds and style of its predecessors in the genre. I wouldn’t bet my life on it, but I’m pretty sure Tom T. Hall (who is still alive) doesn’t make royalties on every version of “Fox On The Run” that’s ever been recorded. That flute riff in Down Under lent a distinctive “Australian flavor” to the song even if most folks (myself included) never identified its similarity to Kookaburro or even made the connection. Besides, they are two entirely different songs and Down Under has nothing to do with a bird sitting in a gum tree. Hell, I remember singing Kookaburro in grade school!

    Quite often entire riffs are stolen…or perhaps “incorporated” is a better word…into songs precisely so that they will be identified. I’m not a huge Kid Rock fan but I like the following song because I used to spend summer vacations in norther Michigan and a lot of the lyrics and visuals in the video are nostalgic for me. You should be able to pick out at least two famous songs Kid Rock “ripped off” in this little ditty:

    Yep, the My Sweet Lord/He’s So Fine case is the one with which I’m most familiar too. “Kookaburra” was written by a Girl Guides leader in the 1930s, to be sung at camps in rounds (like “Frère Jaques”, “Three Blind Mice” and “Row, Row, Row Your Boat”). The second bar of Ham’s flute riff is a note-for-note match of the first bar of “Kookaburra”. But as I said, I never noticed it, despite hearing both a million times, as well as being a working muso myself for quite a few years. No-one noticed it. Which is why the lawsuit stank – Oz

  4. izen says:

    Patents and copyright are two distinct, but related issues. The justification for patents is both ethical – just rewards – and economic. The exclusive right to exploit a concept encourages the development of new and better product.
    Copyright has the same justifications, but applied to reproducible information.

    Music copyright is a historically recent subset of that. Until printing and mass produced musical instruments the ONLY way music could make money was by charging for attendance at a live performance. Then came sheet music. Like the rest of print media it was prone to the production of pirate copies of popular material. But the real commercial opportunities came from the technological development of the means of recording the live performance of a song by a artist. Instead of charging for entrance to a particular venue at a specific time for a live performance, a material object could be sold that encoded a copy of a performance to a much larger audience than could be packed into any concert.
    It was the technological development that enabled money to be made out of music. Before that time melodies were not regardd as the exclusive ‘right’ of any person, they would be reused, reworked and new lyrics written. If a song was closely associated with its composer or performer then other versions by other performers could be done without any constraints that it was the exclusive use of the original. A new version would stand of fail on the merits of the live performance.

    It is only once copies of the performance could be sold that the nonsense of arguing for a share of the money made because four bars of melody are the same came about. I think it is Mick Jagger who observed that he was lucky to live at a time when musicians could make such enormous amounts of money from music. Before the music industry could sell object, sheet music or a LP/CD to an audience musicians could only earn from live performance. Now digital copy is a negligible cost and involves no physical object there is no basis for charging for musical recordings and musicians will again be restricted to earning from live performance.
    Unless the media industry manages to impose legal penalties for digital duplication recorded music, and eventual film, will become free content for the seller of hardware to play the media. And adverts for the live event.

    Despite, (or because!) of some personal involvement in playing music, and siblings who have been in the ‘biz’ with a couple of recording contracts in their past I favour the return to performance being primary. There will be much less money in the music biz, a lot of A&R guys will be short of coke funds….
    I don’t think there should be ANY copyright on music, if other people record a song, I am not persuaded that the composer has any right to a share in the proceeds from recordings of it, and if copying that recording is a zero cost process there are no proceeds unless imposed by government fiat.
    That may seem harsh, that the originator of great music may not share any of the monetary benefit is somebody else markets that music successfully. But it is inevitable with classical music where the composer is long dead. The imposition of longer and longer copyright terms so that the grandchildren of the composer still have ‘rights’ is ridiculous, and a clear case of rent seeking by the media industry.

    Yes, I am advocating a hardline, Libertarian, free market in music. Once composed, music has no ownership rights. Its immediately ‘public domain’ and can be exploited by anyone with the ability to do so. The only aspects of music that can be ascribed ownership and are exploitable are those aspect that can be sold as a material object or attendance at a live performance. You can only sell something that a person is unable to obtain in any other way at lower cost.
    Not that would ever come about while money can be made by invoking ownership rights on data enforceable only with legal sanction.

    Obviously music copyright is different from print copyright which has always been a field of piracy and regulation since Gutenberg. And is about to face its own digital watershed. But the emergence of copyright as a response to technological advance is similar. And the issue of patents has other implications for R&D and the economic benefits of government conferring regulatory advantage.
    But I think the implications of the development, and present demise (hopefully!) of copyright in music are significant.

    Agree with much of that, but I just remembered an instance of music copyright that pre-dates digital recording. When in 1886 Richard Strauss visited Naples and heard “Funiculì, Funiculà”, he thought it was a traditional Neapolitan folk tune and incorporated it into a work of his own. In fact, the music had been written only six years previously by local composer Luigi Denza, with lyrics by journalist Peppino Turco. It had been written to commemorate the opening of the funicular railway to the top of Mount Vesuvius. Denza sued Strauss and extracted an ongoing royalty payment – Oz

    Much as I love our unofficial national anthem, this tops it:

  5. Dr. Dave says:


    I’m surprised by your hard-core, militant Libertarian posture on this issue. In fact, however, I believe what you advocate is far closer to socialism because under your paradigm there would be no property rights to music (i.e. everything within the public domain). People should be allowed to own the fruits of their own labor. People write songs and compose music for a living. Often they never perform music. What happens to the copyright to the song is what varies widely.

    Some songs are sold outright to various producers. Some are licensed to specific performers (with royalties agreements attached). The tales of woe of singer songwriters are legion. Big recording labels will sign these folks (thereby giving their big “break”) but often the contract stipulates that the producer retains ownership of the copyrights to any songs they produce. They proceed to produce a recording which may have limited to no commercial success but now they own the song and can license it out as they see fit. Even big name performers have been screwed by this tactic. Sometimes well-established artists with sufficient means create their own record labels. John Prine is a prolific songwriter. Quite a number of years ago he formed Oh Boy records. He owns the copyright to all his songs published under Oh Boy. It’s more cost-effective to outsource mastering and actual CD (or other media) production and distribution than being an indentured servant to one of the big labels. But the little guys or those just breaking into the business don’t have this luxury.

    Allow me to provide a crude medical analogy. About 25 years ago (before the days of Lasik), ophthalmologists made most of their money performing cataract surgery and lens implants in hospitals. Think of this as the “live performance.” Because most of these patients were over 65 they were Medicaid patients. Medicaid decided the ophthalmologists were making too much money and cut their reimbursement. So the ophthalmologists formed group practices, bought a large clinic and fitted it with ORs to perform their (admittedly low risk) procedures on-site. This way their group could charge for the clinic visit, the use of the OR and an upcharge on all drugs and devices employed. It optimized their profits and literally cut out the hospital. They essentially became their own “record producer.” More complex surgeries were still performed at the hospital as well as routine surgeries for patients without insurance or Medicaid. Unfortunately most musicians don’t have this degree of flexibility.

    Ask any musician who has attained some measure of success with recorded music. They’ll tell you that the real money is in live performances. That’s why you see so many many formerly big name acts doing concerts at “B” venues like casinos and state fairs. They can’t pack ’em in the huge concert halls like they could in their glory days, but they still make more money performing than they do off their royalties on record sales. Concerts are exciting and fun but they don’t always produce the best music. When I sit in my living room and listen to music I prefer the stuff recorded digitally in the studio and meticulously mastered. I maintain that the composers of songs – entire songs – (or those who have ownership of the copyright) should be remunerated for the use of these songs by others The guys in the band I used to play have copyrighted all their original material. They have also recored covers of other folks’ copyrighted material. For this they requested and received permission. Often this is all that is required. It would patently unfair if some some big name record company or recording artist were to swoop in and essentially steal one of their original songs and make a fortune from it without compensating them.

    I’ll continue later with the evils of the recording industry…

    Don’t get me started on the live music scene down here, which was effectively killed off twenty years ago by the arrival of poker machines in pubs. I do know that the way recording industry contracts tend to be structured these days, the label holds copyright to the songs, and advance payments to bands are offset by takings years into the future. The only way bands can make any real money is by touring, and in recent years the labels even want a major chunk of that too, demanding the lion’s share of advance and in-stadium merchandising. It really sucks, and it warms my heart to know the days of the record companies’ monopoly as gatekeepers between musicians and the public are at long last drawing to a close – Oz

  6. Dr. Dave says:

    I meant to emphasize in my previous comment that copyright ownership should only apply to an entire song, either lyrics or melody, not bits and pieces or bass lines or guitar intros. The Kookaburra/Down Under ruling was utterly ridiculous. It essentially states that no one may use those 10 notes in that order in any song without paying royalties. The George Harrison/Chiffons case is even more ridiculous. That ruling was based on 3 notes. Now, if George Harrison had followed “My sweet Lord” with “Do-land, do-lang, do-lang” maybe they’d have had a legitimate case. I don’t know how anyone could compose a new blues, folk, country, bluegrass or even rock song without incorporating riffs and notes (in sequence) used in thousands of songs before. This issue is out of the realm of music and into the realm of lawyers. Lawyers understand music no better than they understand medicine.

    That said, let me bore you with another medical analogy. Musicians and the recording industry have historically (in the era of recorded music, that is) been in a symbiotic relationship. One could not exist without the other. Sure, musicians could still perform. But they had little hope of attaining widespread fame and wealth without the recording industry. Without musicians, the recording industry has no reason to exist. It is analogous to the practice of medicine (and surgery, dentistry, psychiatry, etc.) and the pharmaceutical industry. Medicine is pretty much impotent without the pharmaceutical industry and the pharmaceutical industry has no market without medicine. Sure, the pharmaceutical industry can still produce OTC products but these represent a small fraction of their total sales. I don’t see things changing anytime soon with medicine and the pharmaceutical industry, but we’re already observing a sea change in the music industry.

    The music industry continues to operate under an antiquated business model. For years they reined supreme. They alone decided who would be a star, who would be recorded and what music would enjoy radio play in the larger markets. They had a virtual lock on the media – the vinyl LP format. Vinyl LPs are damn difficult to replicate. The industry had virtual total control.

    They weren’t too concerned about 8-track tapes because the format sucked, very few people owned the means to create them and they could simply sell their wares to the mobile public in this format and earn even more money. Then along came the cassette tape. This worried them. Why…the masses could record songs off the radio onto a cassette and never buy the LP. Few today remember that the recording industry vigorously lobbied Congress to prohibit the sale of cassette tape technology in the United States. They lost. The 70s were the decade of the cassette tape and the cassette recorder. Still, it made little impact on the recording industry. People still needed something to record from so they still bought LPs. And the recording industry sold pre-recorded cassettes. The 80s brought the recording industry a new windfall with the advent of the digital format CD. Once again the industry had a virtual lock on the format. At the time almost no one could burn a CD at home. The music industry enjoyed this monopoly until the mid to late 90s. Then a whole lot of “bad things” started to happen. Home CD burners became ubiquitous, the MP3 format was developed and P2P data transfer was developed. All of a sudden “the masses” could choose what they wanted to listen to. They could pick and choose songs rather than buying an entire album for that “one good song.” Radio stations began playing all sorts of music they didn’t have to pay to play. The “mixed tape” gave way to the “mixed CD” with no discernible attenuation in audio quality. All of these innovations left the music industry with a collective spot in their seats. The performers make most of their money by touring and performing but the recording industry makes their money by confiscating most of the profits from the sale of recorded music.

    The music industry missed the boat on the new formats. Who could have foreseen the widespread adoption of the MP3 player? They rushed to shut down P2P networking without bothering to examine its potential. I used to download a bunch of stuff from Napster many years ago before it became a felony. I ended up buying a lot of CDs as a result of hearing new music. I think what pisses them off the most is the loss of control over what the public listens to. This was a mighty blow. Just consider how much absolute power they once controlled. Independent music labels are sprouting up all over the US. The times they are a-changin’. For instance, lots of folks enjoy country music but a whole bunch of them don’t like the commercialized crap coming out of Nashville. It’s hard for Sony to control an artist signed with Flying Fish records.

  7. Amanda says:

    The line from the Beach Boys: ‘Everybody’s going surfing’ has a tendency to end in my head with ‘sweet little sixteen’. Listen, there are only so many notes. One of my own songs begins with a few notes that, after a while, I recognized as bearing a resemblance to ‘Strangers In The Night’ or whatever it’s actually called. But my song is nothing like the latter and departs forthwith into a different musical and emotional realm. Are we going to be so totalitarian as to give each song a DNA fingerprint? And what good would that serve?

    About copyright. The other night, Itchybeard linked in response to one of my posts a song by Prince that I had never heard before, called ‘Cream’. I thought it was entertaining, and bought the song on Amazon as an MP3 product. When I went back to the YouTube link, it had disappeared — with one of those notices in its place, telling us that copyright eagles had pounced. But my reaction was to think: ‘how stupid’. To me, YouTube functions as the ‘Look Inside’ feature of Amazon does: it gives me a chance to sample the goods before I buy. I would never have bought ‘Cream’ by Prince without hearing it first on YouTube, for the simple reason that I would not have known it existed. Itchybeard publicized the song for them, gratis — but their response was to get all legalistic and pull it. (I am all for laws, but they ought to be sensible ones.) Many times I have bought albums of offbeat Arabic and other ‘ethnic’ music, once I was assured by YouTube samplings that I would not be wasting my money. I believe very strongly in property rights, especially as one that writes and creates works of art. But there seems to be some overkill here. Am I missing something?

  8. izen says:

    Just to clarify, I do not expect royalties, patent licences and ‘intellectual’ property rights to dissappear or be abandoned any time soon. Its an absolute, idealistic position adopted as a chosen folly (grin). The historical legacy is too strong for such a change in socio-economic structures.

    But while property rights make some sort of sense for a material object, they are purely metaphorical when applied to information that is capable of digital encoding and duplication.
    A plot of land, a manufactured item and a unique natural material are all physical objects that can have property rights ascribed to them because ownership is explicit and indivisible. If one person claims sole ownership, another cannot also own it.
    Digital data is different. If I own a song, invention or drug formula, another person can also have a copy of the same information without depriving me of the original information. They can only deprive me of the exclusive use/exploitation of that information. Preventing that requires legal enforcement of the metaphorical property right by government fiat. The rentier problem identified in the Mises essay.

    Both Dr Dave and Amanda have expressed support for the property rights applied to ‘work done’. Invoking the ‘ethical’ argument that we should own the results of our own work. Or presumably that a drug company should own the results of its R&D. The trouble is that such ownership is metaphorical. It is the nature of information that others can posses it without any diminution of the amount possessed by the original holder. And with digital duplication cost near zero there is no financial loss or gain in copying. Only in the potential for exploitation that consequently has to be enforced by government diktat.

    There may be a perfectly credible ethical argument for intellectual property rights. The problem is that the metaphorical definition of ‘property’ in use requires legal enforcement because possession can be infinitely expanded without cost or loss to the original owner. Only a dilution of their ability to exploit it.

    There is a powerful argument for patent rights to encourage research and development, but that has to be backed up with a governmental regulatory legal framework to impose that exclusivity. If Libertarians wish to argue in favour of property rights for virtual objects or ideas then it will require the recognition that they can only be imposed by a communally agreed judicial constraint.

    The argument that such a regulatory regime should be imposed is strong given the encouragement it can provide in the development of products. The field of drug research is the obvious example.
    But the reality is that major companies are blocking the sale of competing products by exploiting patent definitions that, like the 16 notes in a 3min song, are trivial and don’t represent an ethical defence of the individual right to be paid for ones work, but the worst of rentier advantage.
    Apple have been blocking the sale of a competitor device because it uses the ‘slide to turn on’ switch. This is a software/screen simulation of a mechanical sprung slide switch. What old electronic nerds would call a single pole, single throw, biased off slide switch. A forum I found had an Apple rep(?) trying to justify this by describing how the software very precisely defined the distance that the finger in the operating area had to slide, the time it had to be held in the end position, the fact that it must be released, not slid back…etc.
    Its a software imitation of a slide switch, the real version of which is in not patented but a standard bit of electrical kit.!!!
    Madness. -grin-

    Thats the problem that the solution of patent rights for intellectual property creates.
    Can it be solved by MORE regulation?

  9. Ozboy says:

    This ruling just handed down in the U.S. District Court, may have some repercussions for the copyright industry, even though the case itself is on the wackier fringe.

  10. Luton Ian says:

    Calling Dr Dave;
    Dave, have you seen the healthcare article on Mises daily?
    No trolls there yet but we’ve got some particularly ignorant ones there(I’m miss spelling them so they don’t end up here) cooter & gay jould are very opinionated and extremely ignorant (we suspect serious frontal lobe damage for both, if they are not the same sad critter) neither has any comprehension of logical argument, Fr##dom appears to be seriously mentally ill. All are allergic to being assigned background reading.

    Reading it now, Ian. I’ve shied away from addressing healthcare over here, because frankly I don’t know enough about it myself and at LG I’m surrounded by experts. Also “socialized medicine” as it exists throughout the West is a very different beast in each of our countries. Maybe Dave or Tucci would like to get going on this one day – Oz

  11. Kitler says:

    Ozboy on healthcare you don’t need to be listening to those fanatics Dr Dave and Tucci they have no experience in the field. Only Obamacare is the answer.

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