by Joshua Lobb
In a later exchange, Dr Ford is asked, ‘And does that separation make them different?’ To which he replies, ‘No, no, no, they’re exactly the same phrases, but we hear them differently.’
I wasn’t in the courtroom. I don’t know what Andrew Ford looks like, so I can easily imagine him as a bow-tied villain for the prosecution in an episode of Perry Mason, twisting his terminology to serve the applicant’s line of argument. I only have the clippings to go by: ‘Quiz show sparks Aussie anthems battle. Kookaburra conflation undeniable, expert claims.’ The media is full-throatedly in support of Men at Work. ‘Down Under’ is hailed as a de facto national anthem. ‘“Kookaburra” isn’t “owned” by anyone,’ Michael Leunig says in a TV interview, hair fluffed up like a koala, ‘It belongs to us all.’ In fact, Marion Sinclair, the composer of ‘Kookaburra’, donated the copyright to the Libraries Board of South Australia before she died in 1988. Larrikin Music, the applicant in the case, subsequently purchased the copyright from the Libraries Board. A Facebook page—KOOKABURRA VS DOWN UNDER—AN ABUSE OF COPYRIGHT LAW—is set up so that we can spew out rage and cheer on our battlers. Larrikan are decidedly UNAustralian. M@W we love ya. its greed for the almighty dollar that is behind all this shit. Shaddup Kookaburra. where are the legal eagles??!!
Oblivious to these threads, Justice Jacobson proceeds with the case. Objectively, methodically, he analyses similarities of melody, key, tempo, rhythm and structure. On each of these points, he is swayed by the claims put forward by Andrew Ford. Ford observes that there’s a clear resonance between the impugned work and the original, ‘as though it’s a memory of the song, or a reference to the song’. There’s only one moment of doubt in the judge’s scrutiny. In his final evaluation of the case Jacobson muses: ‘The respondents asked a rhetorical question which sums up their response to the claim made against them …’ The question posed by their counsel was, ‘If both Kookaburra and Down Under are such icons, and the similarities are so strong, why did it take so long for anyone to recognise the connection?’
Even so, there could only be one verdict. As the judges in the appeal case put it, ‘the question is one of objective similarity. The aural resemblance need not be resounding or obvious. The relevant test is not the effect upon a casual listener of the whole of the versions of Down Under in the Impugned Recordings …’ Jacobson has no doubt that Men at Work stole a substantial amount of ‘Kookaburra’, both quantitatively and qualitatively. He rules that ‘Down Under’ has replicated two of the four phrases in ‘Kookaburra’—in other words, 50 percent of the song. In his judgement he makes special mention of Greg Ham, the flautist who introduced the riff into the recording. Ham did not attend the proceedings. In publicity photos for the band from the early 1980s, Ham is always larking about: eyes squeezed shut as if he’s trying to block out a sudden loud noise; being mock-punched in the face by another member of the group. His expression is contorted, rubbery: part-innocent, part-impish, like he’s in on the joke. Jacobson never saw this face. He refers to an affidavit that Ham tendered to the court. Ham, Jacobson tells us, is ‘pretty sure’ that ‘Kookaburra’ was part of his school’s song book, when he was at primary school in Australia in the late 1950s. Jacobson says:
For present purposes it is sufficient to say that Mr Ham’s reproduction of the relevant bars of Kookaburra reinforces the finding of objective similarity. That is the real significance of the failure to call him.
In my opinion, it is appropriate to draw the inference that Mr Ham deliberately included the bars from Kookaburra in the flute line for the purpose referred to above.
I act out this statement, reported via newsfeed, to my wife as I do the washing-up. Suds flick in the air.
‘That is the real significance of the failure to call him. Can you believe it? Like he did a runner, he’s a desperado on the lam from the law.’
I’m aware that I’m cackling like a madman.
She takes a plate from the rack. ‘Why are you so obsessed with this?’
I wince. I’ve never liked the word obsession.
‘Are you all right?’ my wife asks.
‘The water’s too hot,’ I reply.
In the end, it comes down to costs. Even though Larrikin seeks a figure of forty to sixty percent of the total royalties, Jacobson remarks that this is ‘excessive, overreaching and unrealistic’. More experts are called, more music is analysed, and a figure is reached of five percent of the proceeds since 2002. Colin Hay, the frontman of the band, calculates that this amounts to ‘something like sixty grand’. But he also says, at a later date, ‘we lost more than them’. Eighteen months after the appeal is lost, Greg Ham is found dead in his North Melbourne home.
‘Check these out,’ my wife calls, moments before the kookaburra strikes. She’s slid into YouTube, searching for the hooting kids on The Late Show with David Letterman and then, deeper and deeper, into archival footage of bird-calling competitions. The dog struggles up from his spot beside me, saunters over to my wife, nuzzles the back of her hand. My wife nudges him away unconsciously; amiably, he waddles into the cool of the house.
‘Can you believe it?’ my wife is saying, transfixed by the screen. She’s found a Super 8 recording of the 1973 Piedmont High School Bird Calling Contest. Teenagers with middle-parted hair and enormous glasses give giggling renditions of wood pigeons and canaries, geese and chickens. Some whistle through cupped hands; others stand back, open their mouths as wide as possible, and squawk the house down. The microphone reverb harmonises. Sometimes the tape gets caught on the reel and the voices change register, jangling forward as if they’re anticipating the next moment.
Where Justice Jacobson ponders over the objective similarity between the two songs, these children have no concerns that their calls might not be authentic. You could make—and scientists have made—spectrogram recordings to demonstrate the similarity between bird calls and human imitation. Like Justice Jacobson, the quantitative tools biologists use include comparisons of pitch, tempo, complexity and structural organisation. But bird callers aren’t worried about stealing the birds’ music or infringing copyright. They’re providing a song of unabashed joy, and are being heard by an enchanted, appreciative audience. The song—the imitation and the original—is a gift.
One of the stories I tell my daughter—since the incident with the bacon she’s become obsessed with kookaburras—is a dreamtime tale about how the bird got his laugh. I don’t know where I unearthed the story. I may have heard it read on Play School once: the rocket clock spins to reveal a diorama of a soft toy wobbling in front of an electric-orange sky. It may be from my own childhood: listening, cross-legged, on the frayed carpet of my primary school, to the trilling voice of the teacher. In the story, the morning star asks the kookaburra to help him mark the beginning of each new day. My daughter looks up at a constellation of glow-in-the-dark stickers on the ceiling and picks out the right one to play the part. Every morning the star sits, poised, just above the horizon, but the animals don’t notice his quiet twinkling and they sleep through the day. The star realises he needs a proper trumpeter, a call that will wake the heaviest sleeper. So he asks the kookaburra to sing a dawn chorus. When he hears this request, the kookaburra laughs with pleasure. My daughter, not-quite-sleepy, provides the sound effects. The laughter jubilates in the space between the bed and the stars.
‘Yes, that’s it, that’s exactly right,’ I say.
‘Yes, that’s exactly what we want,’ the dawn spirits cry.
The kookaburra tousles his mottled feathers. The dawn begins to hum the warmth of a new day.
Consider this moment: in 1934, a school teacher called Marion Sinclair is dozing in a rickety chair in her back garden. There are no iPads, but there might be a weekend broadsheet blanketing her knees, crisp and warmed by the sun. Above her are the sweeping branches of a eucalypt. A kookaburra high above, laughing at the sky. In the space between wake and sleep, a melody takes shape. She uses this to conceive a song called ‘Kookaburra Sit
s in the Old Gum Tree’. Later, she submits it to the Girl Guides Association of Victoria in a competition for ‘a typically Australian round’. She wins first prize and the work is published in a Girl Guides’ bulletin. The association praises Sinclair and the other contributors for ‘a great combined effort of everyone working together for the good of the whole’. In a letter to Sinclair, a member of the Executive Committee of the Girl Guides thanks her for ‘the gift of your three rounds to the Association’ and ‘for your donation of the proceeds to the Guide House Fund’. Later, Sinclair says of the song that it ‘was not composed by me, but merely set down … It is God’s song’. She’s thinking of the bird, the tree and the enormous canopy of sky above them.
Consider this moment: in 1979, two members of a newly formed band play a bass line to Greg Ham, a classically trained musician. They’re rehearsing in a grungy studio in North Melbourne, round the corner from where Ham will later live. It’s a fun, satirical song, part pop, part reggae. It talks about drinking beer and chundering; it rhymes ‘language’ with ‘Vegemite sandwich’. Ham giggles and his larrikin face beams. The tune catches in his mind. He’s thinking. It needs something, he says to his mates. He picks up his flute and breathes out a musical phrase. It flutters against the jangle of the guitar. Of course he knows that it’s been played before: he can remember singing it as a child, sitting on the splintery floorboards of his school hall. He perceives it, not maliciously, as an ‘Aussie cliché melody’, an iconic reference to Australiana. It’s as if the two tunes have always been together. In this cramped studio—sticky coffee cups strewn, egg cartons gaffer-taped to the walls—something miraculous has happened. The men are laughing so hard that Ham sprays a paint-gun of spittle into Colin Hay’s face.
Consider this moment: an exhausted mother wafts towards bed. She’s just been watching a television music quiz show and she’s carrying one of the tunes—two tunes—away with her. In the appeal case, Hay and EMI asserted that the inclusion of the original song:
was at most a form of tribute to Kookaburra, which might be amusing or of interest to the highly sensitised or educated musical ear, but was otherwise unlikely to be separately noticed by the ordinary listener.
But imagine the surprise, the joy when we do hear it. The gift of recognition.
There’s another dreamtime story I tell my daughter. The lyrebird struts through the bush, bragging that he can sing better than all the other birds. When the other birds hear this they’re furious and call a meeting to put the challenge to the test. The magpie, the cockatoo, the brolga, the finch. The kookaburra squats on a branch of a eucalypt, a little further away. One by one the birds perform their song. Each time, the lyrebird’s mimicry can match it and better it, singing it more melodiously than the original bird.
The kookaburra sits, fat and contented, niggling his feathers. He finds it hilarious that the other birds are trying so hard and failing so spectacularly. He lifts his head and laughs. The lyrebird thinks that the laugh is part of the competition and tries to copy it. This makes the kookaburra laugh even harder, the punked-up white quiff on the top of his head quivering. The lyrebird opens his beak wider, but can’t catch the tune: it’s too wriggly, too jangly, too specific to the kookaburra’s round rib cage.
The lyrebird concedes defeat, saying, ‘That’s your song. No one can ever take it away from you.’
Interviewed outside the Federal Court in Sydney, the managing director of Larrikin says he was ‘doing his job in protecting lawful ownership of material against theft’. ‘You wouldn’t steal a car,’ my DVD tells me every time I try to watch a movie. In another preview, Geoffrey Rush guilts me into caring about the Australian Film Industry, protecting the rights of artists. In an online article I’ll read later, following my own line of inquiry, I’ll learn about avian mimicry as a form of ‘parasitic deception’. Some birds copy others to gain a tactical advantage: the imitator steals the tune to also steal food, or the roost, or another bird’s mate. The original bird hears the call of the mimic and calls back, innocent to the deception. The mimic calls again. The original bird, duped, wanders away from the nest.
Images, too, can offer a false perspective. Dr Ford, witness for the ‘Kookaburra’ case, is no villain: he’s a respected composer and musicologist. He’s been composer-in-residence with the Australian Chamber Orchestra, and broadcasts on ABC Radio National. He doesn’t wear bow ties: his press photos show him in an oversized woollen jumper, his generous face framed by a furry bushranger beard. Words can be warped, like the stretching of Super 8 tape. Michael Leunig did not say that ‘Kookaburra’ ‘belongs to us all’; in fact, he was talking about ‘Down Under’, I just transcribed it incorrectly. The kookaburra/lyrebird story is not a dreamtime tale. I found it in the ‘Student’s Notebook’ page of the Argus, a popular and conservative Melbourne newspaper. Dated 3 October 1952, the story is surrounded by line drawings that look like they’ve been lifted from an Enid Blyton book. Above it is a piece about model aeroplanes; to the left, an article about home economics. It’s been written for middle-class suburban children: children of the White Australia Policy. Even though it’s titled ‘Aboriginal Legends: The Kookaburra’, I’ve never seen this story included in any collection of dreamtime stories. It matters where the story comes from.
Moments are never moments on their own. You have to understand the context. My daughter is still swinging her legs off the edge of the veranda, tapping her fingernails on the boards. The kookaburra is still waiting for his moment to swoop.
The case was appealed a year after the first application. One of the many challenges raised by the cross-respondents was a failure by Justice Jacobson to recognise that Kookaburra was published as a ‘Round in 4 Parts’: if this is taken into consideration, then Justice Jacobson’s determination that the relevant phrases constitute fifty percent of the song is no longer valid. Justice Arthur Emmett, one of the presiding judges in the appeal, summarises the argument:
[this] indicates that it was to be sung by four voices or four groups of voices, such that each of the parts is continuously repeated. When sung as a round, the four phrases shown in [Kookaburra] would be progressively heard over the top of each other. Thus, even if Kookaburra were sung through as a round only once, it would consist of seven bars rather than four.
In the transcript of the original case, Andrew Ford (with or without bow tie) does raise the point that Kookaburra is a round. He says that rounds can be a ‘tricky and rather amusing business’. Four parts need to work together to create pleasurable rhythms and counter-rhythms. One phrase skips when the others stretch; one busy set of quavers fills the gap where another line rests. In the appeal, much is made of Ford’s statement. The judgement document repeats it six times. Sometimes as a complete phrase (‘Dr Ford described writing a round as “a tricky and rather amusing business”’); sometimes as fragments, broken down into constituent parts (‘a round is a musical work the creation of which … involved the “tricky” and “amusing” business’). Ford’s language goes round and round the courtroom: like a record being played by a twelve-year-old boy; like a small girl skipping in a garden looking up into the branches of an old gum tree.
I heard a round sung just last week, when we visited our daughter at her school. (Maybe that’s where she’s getting the rhythm from? Tap tap tap tap. Tap tap tap tap.). It wasn’t an official concert, just parents invited along to the classroom so the pupils could show off their good manners and finger painting. My daughter’s picture was an A3 affair, a panorama of orange and purple. I made a few conjectures on what it could be representing, and was relieved when she said, ‘Daddy. They’re just colours.’ At the end of the morning the parents were asked to sit on the springy turquoise carpet. We all enjoyed getting into formation: creaking our legs into the cross-legged position; reminiscing about our own classroom antics. The children formed four ragtag clusters in front of us. They stared at their teacher: eagerly, anxiously. The teacher tapped out a beat on her palm. She nodded, poin
tedly. The first group took off, then the next, then the next, then the next. My daughter was in the last group. A little flick of spittle sprayed when she hit a consonant.
Jonathan Lethem talks about certain kinds of language, what he calls a ‘commons’. He writes: ‘That a language is a commons doesn’t mean that the community owns it; rather it belongs between people, possessed by no one, not even by society as a whole.’
There was a moment during the performance, right at the height of the round, where it should have been a cacophony. Twenty-four small children, twenty-four spittly mouths, twenty-four bobbing heads. Each with their own worries, their own obsessions: cars or cricket or dinosaurs or budgies. But something made it all come together. All the voices were doing something different, but they were all working together. My daughter looked at me, her eyes glinting.