A judge has ruled that the chart-topping Australian band Men at Work could have to repay millions of pounds in royalties to the owners of the rights to a popular children’s nursery rhyme. Justice Peter Jacobson ruled that the band’s number one hit Down Under infringed on the copyright of Marion Sinclair’s Kookaburra Sits in the Old Gum Tree as it replicated ‘a substantial part of Ms Sinclair’s 1935 work.’ Colin Hay, Men at Work’s vocalist and chief songwriter, acknowledges Down Under’s use of Sinclair’s material, although he maintains that the appropriated bars of Kookaburra were ‘part of Men at Work’s arrangement of the already existing work and not the composition’.
Whatever the distinction, the ruling could also have profound implications for classical composing. Contemporary composers, specifically those working within the postmodern idiom, will often playfully reference works that have influenced them: from pieces of classical music and old folk tunes, to modern pop, rock and jazz.
This technique of pastiche or homage is a staple of modern composition, not just in the classical style, but in all modern music, specifically since the proliferation of electronic sampling. However, contemporary composers, who have traditionally been able to do this without fear of legal reprisal, will increasingly have to be a lot more careful in the material they choose to reference.
The case could also pose questions for the relevance of contemporary composition. Unlike chart-topping pop acts, modern composers might not be able to pay substantial royalties, which means that the techniques of transcribing, referencing and homage may be consigned to works composed before copyright law came into effect.