WAY DOWN UNDER IN A LAND MEDIUM UNDERDONE

An article in the hilariously abrasive CREEM magazine of yore (and many years yore at that) once posited that the amazing thing wasn’t that George Harrison had subconsciously and accidentally incorporated portions of the Chiffons’ song He’s So Fine into his own hit My Sweet Lord, but that he’d done so in such a blatant and cack-handed fashion that he’d somehow managed to convince a judge in a court of law that he’d done it. *

To me, the amazing thing about the court decision that Men At Work’s famous national baggage, Down Under, plagiarised the well-known children’s earache, Kookaburra Sits in the Old Gum Tree, is that when I looked up from first reading a report about it, the date-line didn’t read “April 1st”.

For clarity’s sake, I have to make a few points here.

1 – I am no fan, friend or booster of Men At Work, Colin Hay, Ron Strykert, Greg Ham, or any other member or former flute roadie thereof. I’ve never thought of Men At Work’s music as being anything other than an annoyance similar to a gigantic blowfly buzzing in through an open window in summer, except that you can at least give the blowfly a face-full of bug spray, a practice which it is, for better or worse, illegal to do to members of Men At Work under current federal and state law.

2 – If I never hear the song “Down Under” again, it will be several millennia too soon.

3 – I have never knowingly, or at least within memory, had any dealings – good, bad, indifferent or all of the above – with Larrikin Music, or its apparent owners, or parent company, or whatever they are, the UK publishing conglomerate, the enchantingly named Music Sales Group.

4 – Grand Australian tradition though it may well be, it would probably double my remaining life-span to never hear the song about the kookaburra again either.

Never, and I mean, in the timeless phrasing of pro wrestler/wordsmith Chris Jericho, “Neh-eh-eh-eh-EVER!!” in the 37 million or so times I, along with every other living Australian who hasn’t passed away from exposure to this song, have been subjected to Men At Work’s notorious ear-wash “Down Under” have I ever noticed that the flute line quoted “Kookaburra Sits in the Old Gum Tree”.

That’s a guarantee. 100% truth. Right to this day. I can sit here right now, with the famous mental toothache “Down Under” coming unbidden to mind, and not remember one part that to me sounded like the kookaburra song. Never occurred to me.

Now, enough people are saying it that there must be something to it – i.e. that there is some quotation in the flute part of “Down Under” that sounds like the kookaburra song. According to court testimony, apparently Colin Hay even sang part of the freaking kookaburra song on stage in 2002 during performances of “Down Under”.

(Actually, I have no idea what that proves. I worked out years ago, before it was anything like common knowledge that you can sing the whole of the Gilligan’s Island theme lyric to the tune of the Australian national anthem, or vica-versa, and the words fit the music perfectly. I strongly doubt the composition of one musical item had any influence on the other in that case - the fact that we, in many ways, clearly ARE living on Gilligan’s Island notwithstanding.)

The point I’m making is that, as with all Australians, I’ve been exposed to this song roughly as often as I’ve been exposed to direct sunlight, and perhaps to ultimately the same effect, and in all that time I’ve never once been struck to note, “Ah yes, the flute part is the kookaburra song.”

Here’s the other point. Larrikin’s lawyer stated they were after 40 to 60% of the income derived from the song. The song made the tens of millions of dollars it did because it was a WORLDWIDE hit.

So what percentage of people around the world, or even here for that matter, bought/loved/confirmed-their-taste-buds-were-located-in-their-rear-underpant-area-by-listening-to, the song “Down Under” specifically because they were enchanted by the way a bit of the flute diddley supposedly brought all the joy of “Kookaburra Sits in the Old Gum Tree” flying to mind?

To start with, I think it would be ridiculously kind to the Larrikin music side of the case to suggest that even 50% of the overseas market concerned even knew what that kookaburra song was. Overseas was the exact location that the real money came from. If we were talking about the royalties that came in from Australia alone, I doubt we’d be talking about a court case at all. Comparatively speaking the two parties could have split the difference and bought each other a cup of coffee, and the only argument would be over who had to pay for the biscuits.

Secondly, what made the song a hit, other than a worldwide intermission in anything resembling taste. Well, the song did. The music, very much the lyrics, the singer’s delivery of the song, the production, the engineering, the mixing, the instrumentation (including use of the wretched flute), the instrumental performances, the arrangement, and no doubt several million accountants’ headaches worth of promotion, advertising and marketing.

One part of one part of that was a guy playing a flute. Was the flute part of the sound that made the song “work” as well as it did? Well, maybe. Or “why not?”. Or “to a degree”. Would it have sold more, less or the same without a flute part? Who knows? All you can really say for certain is that the flute was a conspicuous part of the sound of the track.

But for argument’s sake, let’s all hold hands around the copyright séance table, (adjacent to the “assessing musical/monetary worth of the whole via constituent parts” ouija board), and agree momentarily that the flute being present on the record contributed to some degree to the track’s success.

Assessing how much it contributed to that success, as with the peculiar alchemy of just about any hit record, is (given all the other factors mentioned earlier, and that wasn’t necessarily anywhere near an exclusive list) completely impossible. So let’s for the hell of it say it’s 5% of the value of the song just being there.

(I’ll just point out that unless there’s some arrangement I’m unaware of in this case, that “5% value” wouldn’t be recognised in any songwriting royalty arrangement, as the composers were listed as Colin Hay and Ron Strykert. There may be some performance royalty payable to Greg Ham as the woodwind guy in the band, but I’d be guessing that this wouldn’t amount to 5% of the entire value of all money recouped from the song.)

And the next question that lurches into the starting gate is, of course, how much of that 5% specifically comes down to the flute part supposedly being derived from that timeless wonder of Australian musical fauna, “Kookaburra Sits in the Old Gum Tree”?

Or to put it another way, if he’d have played any other diddley-widdley flute line that came to mind and vaguely fit in with the rest of the music, how much difference could it have possibly made to the overall worldwide sales of the song?

Considering that, to me, the only part of the song where I’ve ever vaguely noticed what the flute guy was actually playing, was the introduction, and for the life of me, I can’t find any connection between that and the melody I’m familiar with, as part of unwanted lifelong mental luggage, as “Kookaburra Sits in the Old Gum Tree”, the answer for me would be “None”. No difference at all. Had the guy instead blown his nose into the flute while performing the correct fingering for The Jetsons theme, I wouldn’t have noticed any difference.

My question is, if the flute line had been there, incorporated into the arrangement in the same manner, been in the same key, but hadn’t incorporated any material from the kookaburra song, would it have made one Transylvanian pfennig’s worth of difference to the song’s international success and royalties haul?

There’s only one rational answer to that question, I reckon. No. It didn’t, it couldn’t, and not even in a science-fiction movie in which Gary Coleman ruled a world of robot dinosaurs, assisted by former members of Bananarama, would it have been possible for this ever to make one iota of difference in the sales of the song “Down Under”.

However, according to everyone else, who can hear it where I can’t, there is a bit of the kookaburra song quoted in the flute part, somewhere in the track “Down Under”. The reality is, if they quoted it, even fleetingly (although that would also probably depend on how fleetingly, but let’s skip over that for now) and the song has a copyright holder (and it does) there is some financial obligation on the part of the quote-er to recompense the quote-ee.

I don’t know if you’ve noticed this but in a movie, if anyone even sings the Happy Birthday song we still all suffer on an annual basis at birthday parties spanning the globe, there’s always a listing in the musical acknowledgement section of the credits, because even that song had writers, and apparently still has a legal owner.

Then the question becomes, what do the Men At Work guys really, logically, fairly, owe the kookaburra song copyright holders, in terms of the impact that musical quotation made in worldwide sales. And I tell you what, if we’re talking MC Hammer’s use of the Rick James riff from Super Freak in the historical Hammer hit You Can’t Touch This, and I’m the guy in charge, I’d say, well, that’s significant usage. The riff from the former is an integral part of the latter. If it were me and I were assessing it, I’d say you could figure that as being in the 10’s of percentage of the later song’s worth, whether 10% or 15% or 20%, or whatever.

(Don’t ask me what the actual agreement/figure was – I wouldn’t have a clue. I’m not even aware of what the standard arrangement for something like that is, or if there is one. I’m just trying to make a comparative point here. Don’t bust my pants-bulbs over it.)

In the case of Men At Work vs Kookaburra Up Tree, I’m saying, taking all salient facts into consideration with a deeply furrowed brow and judge-wig at a comical angle, I reckon it’s worth about one-squiffteenth of 1%, and not a penny more, Stephanie.

I reckon if Men At Work end up having to pay much more than their opposition’s parking fees for the duration of the trial, they’ve been taken to the cleaners.

It matters to some minor degree that there is a flute part in “Down Under”. Quite frankly if the same guy had been featured in the mix in the same way, and had played the alien theme from Close Encounters of the Third Kind throughout, or the Ron Grainer theme tune from Steptoe and Son for that matter, in place of the appropriation of some portion of the kookaburra song, the total difference to overall world sales would have been in the close vicinity of exactly zero per cent.

In the court of Leapster, I find, grudgingly, for the plaintiff, and award them the total of seven $10 parking stubs, and a weekly travel-card for the junior legal assistant who doesn’t own their own car. Parties to pay their own costs, and ensure I never hear either accursed song involved in the dispute ever again, on pain of torture. Case disgraced, and dismissed.

In conclusion, let me point out that Americans previously used to refer to the kookaburra as the “laughing jackass” and had the Americans concerned lived to see this day, they would have been gratified to find out that they were at least half right.

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* There is apparently a hilarious postscript to this case which most people I think are unaware of. Usually you just hear the part about how Harrison was taken to court for unconsciously plagiarising He’s So Fine in his song My Sweet Lord, and that’s where the story stops.

I’ll precis this quickly here, but you can get the full details on the Wikipedia site.

When the My Sweet Lord/He’s So Fine case first came to trial in late 1976, the legendary music business shark/lawyer Allen “ABKCO” Klein was assisting Harrison (his one-time Beatles client) as his legal adviser. However by the time the trial got around to the business end some years later in 1981, Klein had actually become the plaintiff, as in the interim he’d purchased Bright Tunes, which owned the copyright for the Ronald Mack song “He’s So Fine”.

In the end, and facing a situation in which you had one guy at least in part having figured on both sides of the one case, the judge ordered that Harrison purchase Bright Tunes from Klein for the US$587,000 Klein had paid for it.

Somehow, and I think the “somehow” basically comes down to Klein being involved, legal dispute over this managed to last for a further TEN YEARS, before the aforementioned decision was upheld. So, in the end, dear old George presumably ended up owning both “My Sweet Lord” and “He’s So Fine” anyway.

Maybe Klein then phoned him up to volunteer to represent him in any appeal over the plagiarism finding. I wouldn’t put it past him. I can only think that if Klein fought for ten years over the matter, that the $587,000 figure must have actually been what he paid for it, despite any alternative suspicions that might otherwise automatically leap to mind. I’d guess it would have killed him not to make a profit on the sale. I still find it hard to believe he didn’t, actually.

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