15 February 2010 — Down Under
Peter Mclan wrote a piece for The Australian, on the ruling about Men at Work's "Down Under". He's completely right.
I wrote a couple of things about art and the public domain here (and a followup here). My initial entry point into discussing intellectual property was different, but likely gives you an idea about what I think about this whole thing.
One of the things I remember saying to one of my bandmates when I first heard about this case, when I was in Brisbane recording, was that I thought it unsightly that Colin Hay should have to bother pretending that the flute riff wasn't ripped from "Kookaburra". I'm not saying I think they definitely did consciously take it, but that, if they did, they should be able to be proud of that. It disgusts me to think that this sort of quotation should be discouraged.
Mclan nails it when he talks about the danger of the term "recognisability". Every musician is influenced by others who came before, and as they work on their music they will inevitably incorporate aspects of those songs that have influenced them. As anyone with musician friends could probably attest, it can sometimes become a game to listen to a new album and find parents: "that drum pattern's the same as that Shadow song on Endtroducing", or "Hear how that string line's basically playing the riff from "She Said, She Said"?". That's a good thing. It's how it's supposed to work.
And there's another issue, that Colin Hay brought up in his statement about the ruling, which you can read here. Solos aren't usually thought of as being part of the "composed" song. I've played any number of solos on songs in which I'm not credited as a writer: that's how it's done. And in live performance particularly, it's incredibly common to quote other works during solos. Charlie Parker famously quoted a line from The Rite of Spring at a gig when Stravinsky was in the audience. I remember attending a Bob Dylan concert in 2001 in which he played the melody for "Waltzing Matilda" during a guitar solo. The crowd exploded. It would be a pretty big shame if musicians felt like this was no longer something they were allowed to do.