If you accept, which, I should add, I strongly do not (for reasons that are much more intelligently put by Graeme Downes, musicologist and driving force behind New Zealand's Verlaines, in a long blog entry that I commend to you), that Men At Work's "Down Under" is a "substantial reproduction" of the old Australian song "Kookaburra Sits In The Old Gum Tree", then Portishead's lawyers might be well advised to spend some time with the title track from Charlotte Gainsbourg's new album, "IRM", and run some comparisons with "Silence", the opening song on Portishead's "Third". There may not be any note-for-note copying going on, but the overall sound and atmosphere of the two are, at the very least, sympathetic. The way the drums, recorded to the edge of distortion and then a little bit further, punish the listener. The way both songs don't so much end as just stop, as if someone has simply pulled the plug. (There are, actually, elements of a couple of other songs from "Third" that can also be picked out in "IRM", I'm thinking in particular of "We Carry On" and "Nylon Smile". Then again, there are also close echoes of T Rex, as I have mentioned before, in one of the other songs on the album, "Dandelion", not to mention all the ways in which it reminds of Beck's own "Sea Change" album.)
The point I want to make, though, is that none of this is intended in any way as a criticism. Aside from imitation being the sincerest form of flattery, and all that, there are any number of songs that I like that sound like other songs that I like. This is not just coincidence. Once a piece of music is out there in the public arena, there is a good chance it will catch someone's attention, and if that someone is a musician, well, it is always possible that some small part of it, a few notes, a chord sequence, a sound, a mood, even an indescribable essence, might turn up in one of that musician's songs.
Which leads to my problem with the Men At Work decision. Judges talk, in various contexts, about things having a "chilling" effect. (They don't mean that crawling feeling you get when sitting around a campfire telling horror stories. They mean that activity in a particular field will be dampened down, or frozen.) All songs are, in some way, influenced by other songs. If the Men At Work decision is correct (and, unless it is successfully appealed, it is by definition correct, in the sense that The Law Has Spoken, unless Parliament sees fit to legislate against it) the logical corollary is that the only people who will be able to write songs, free from the risk that they will be seen in the eyes of the law as plagiarising someone else's work, are people who have never listened to another piece of music in their lives. There is, I would have thought, a difference between being original and being ignorant.
Yes, there is, when you know to listen for it, a clear but fleeting similarity between one line of "Down Under" and the opening melody of "Kookaburra". (The ways in which they are not similar is explained by Downes.) I have listened to a lot of songs, and, as I have perhaps established on this blog over the years, I am able to hear (rightly or wrongly) bits of songs in other songs all the time. And yet I (and, presumably, most other people, until it was pointed out during an episode of the popular Australian music-quiz television programme "Spicks and Specks") had never made the connection. To say that the two songs, as songs, are "substantially similar" is, in my own opinion, nonsense. To say that a fleeting reference, which, even if it was conscious, can't really be said to rise above the level of homage, nod, wink, or "shout-out", is worth forty percent of the Men At Work song's royalties, well, no. Just, no. You might as well say that anybody using the words "I love you" in a song is breaching the copyright of whichever of the tens of thousands of songs using those words happened to be written first.
Larrikin's decision to bring this case in the first place can only have been a decision made by opportunists with dollar signs in their eyes, or by bean counters, in any case people with no regard for its implications for the future of songwriting. In winning it, Larrikin's "Kookaburra" has not only managed to do a big crap in its own nest, it has also taken a large bite out of the hand that feeds it. It is yet another example of being careful of what you wish for, just in case you actually get it. The company would be well advised to contemplate the consequences of its "victory" for the future of the industry it is a part of, and thus for its own future cash flows. I don't know if this has ever happened before, but Larrikin might even think about making an odd kind of legal history by appealing against its own successful court action.
