Songwriters found guilty of stealing melody!

David Mellor

David Mellor is CEO and Course Director of Audio Masterclass. David has designed courses in audio education and training since 1986 and is the publisher and principal writer of

Tuesday July 6, 2010

You can find the background to this story here...

The gist however is that the writers of the massively popular Australian song Down Under were accused of stealing a melody from the old Aussie folk song Kookaburra Sits in the Old Gum Tree. They didn't use it as the main melody of the song. It doesn't open the song. It appears briefly in a flute solo nearly one minute into the song, and then only around 20 notes or so.

Despite the near-irrelevance of the inclusion of Kookaburra in Down Under, the copyright owner of Kookaburra took Down Under writers Colin Hay and Ron Strykert to court asking for 60% of their total earnings from the song.

Clearly Colin Hay and Ron Strykert have made a lot of money from the Down Under. But did 60% come from the inclusion of a mere fragment of Kookaburra? In any case, they have probably spent the money by now and to be asked to pay back 60% would probably bankrupt them.

But thank heavens for sense and reason.

An Australian court has now ruled that Hay and Strykert must only pay 5%, and then only from earnings since 2002. Even so, this will probably cost them many thousands of Aussie dollars.

So what does Audio Masterclass think of this?

Some thoughts...

  1. Although 5% since 2002 is a lot less than 60% of all royalties, the twenty or so notes from Kookaburra form very much less than 5% of Down Under.
  2. This ruling establishes a 'profit line' for publishers who find any notes from one of their songs in the work of another writer. It will now be possible to calculate whether it would be profitable to take a songwriter to court, taking into account the 50/50 chance of the judgment going the publisher's way.
  3. The writers of a successful song can now expect to be sued for breach of copyright. There are only twelve different notes so whatever melody you write is certain to have been written before. If you write a successful song, you should put aside a percentage of your earnings to cover future claims.

By the way, the writer of Kookaburra is long dead so she will not profit from the judgment.

But there is a positive side to the judgment...

Almost implicit in the Australian court's ruling is the thought that a songwriter can now deliberately consider using part of another copyright work in their song. If 20-odd notes cost 5%, then a songwriter can calculate how much they can expect to pay.'s position is that songwriters and composers should be legally entitled to re-use parts of pre-existing copyright works, on payment of a statutory royalty, the percentage to be governed by the respective proportions of original and non-original content, and how important they are to the marketability of the song.

In truth, it is impossible to compose a piece of music without somewhere using a combination of notes that someone else has used previously. So why go to court every time there is a problem when the issue can be dealt with fairly when a new song is first published?

Of course, this is a big subject and we couldn't possibly cover every angle in these few paragraphs. However, this case has highlighted the fact that there is a genuine problem here that needs to be solved. And it needs to be solved fairly for both writers and publishers.

And let's keep the lawyers out of the equation.

What right do lawyers have to make money out of music?

Like, follow, and comment on this article at Facebook, Twitter, Reddit, Instagram or the social network of your choice.

Come on the Audio Masterclass Pro Home Studio MiniCourse - 60 great hints and tips to get your home recording studio MOVING

It's FREE!

Get It Now >>

An interesting microphone setup for violinist Nigel Kennedy

Are you compressing too much? Here's how to tell...

If setting the gain correctly is so important, why don't mic preamplifiers have meters?

The Internet goes analogue!

How to choose an audio interface

Audio left-right test. Does it matter?

Electric guitar - compress before the amp, or after?

What is comb filtering? What does it sound like?

NEW: Audio crossfades come to Final Cut Pro X 10.4.9!

What is the difference between EQ and filters? *With Audio*

What difference will a preamp make to your recording?

Watch our video on linear phase filters and frequency response with the FabFilter Pro Q 2

Read our post on linear phase filters and frequency response with the Fabfilter Pro Q 2

Harmonic distortion with the Soundtoys Decapitator

What's the best height for studio monitors? Answer - Not too low!

What is the Red Book standard? Do I need to use it? Why?

Will floating point change the way we record?

Mixing: What is the 'Pedalboard Exception'?

The difference between mic level and line level

The problem with parallel compression that you didn't know you had. What it sounds like and how to fix it.

Compressing a snare drum to even out the level

What does parallel compression on vocals sound like?

How to automate tracks that have parallel compression

Why mono is better than stereo for recording vocals and dialogue