Men at Work vs. Kookaburra

I think Tim Dunlop missed the point yesterday in his Crikey piece about the Men at Work/Kookaburra case. Trying to decide whether they did or did nor borrow the melody from the folk song seems, to me, insignificant compared to the question of “should it matter if they did?”. Here’s my response (as a letter) in today’s Crikey.

Re. “Music copyrights and wrongs: money hits the right note“. Tim Dunlop’s piece seems to have missed some of the larger issues at play in the “Kookaburra” case. To me the question shouldn’t be whether a musical riff was borrowed consciously or unconsciously, was part of the composition or the arrangement. It’s not who owes whom money. The question is whether culture can grow and thrive under conditions where a few notes can land you in a courtroom.

Copyright exists to give artists a monopoly on their work and incentivise further creativity — this benefits society, because we all want new music and art, and the more the better. Too much regulation, though, and copyright starts to stifle creativity. No art, whether it’s literature, painting or music, is created in a vacuum — all works borrow (consciously or not) from the artistic milieu in which they were conceived. If an artist has to be afraid lest a tiny corner of his or her composition contains a recognisable element from somebody else’s, art suffers, and society suffers.

As Harvard copyright professor Lawrence Lessig has pointed out, where would writing be if you had to secure permission from the rights-holder of a text when you wanted to quote a paragraph for illustration or review? It’s too absurd to contemplate. Yet in other media, we are headed increasingly in that direction. It’s a good time to be a lawyer, but not to be an artist.