On 9/02/2010 7:42 PM, The Raven wrote:
> "Sylvia Else" wrote in message
> news:0008c5e8$0$2661$c3e8da3@news.astraweb.com...
>> On 9/02/2010 1:53 PM, Ian Galbraith wrote:
>>> On Mon, 08 Feb 2010 18:13:11 +1100, Sylvia Else wrote:
>>>
>>>> On 8/02/2010 6:04 PM, Ian Galbraith wrote:
>>>>> On Sat, 06 Feb 2010 15:14:06 +0800, Neil Gerace wrote:
>>>>>
>>>>>> Evan wrote:
>>>>>>
>>>>>>> It absolutely obvious that this Federal Court judge has no idea about
>>>>>>> fair-use or anything faintly to do with performing music.
>>>>>>
>>>>>> Use of someone else's work, without an acknowledgement of one source,
>>>>>> is plagiarism - isn't it?
>>>>>
>>>>> He used some similar notes, its clearly not plagiarism, they don't
>>>>> sound
>>>>> the same. There are a ton of songs that uses riffs and melodies that
>>>>> are
>>>>> quite clearly taken from others. The legal action is a joke.
>>>
>>>> From the judgement
>>>>
>>>> "161 But perhaps the clearest illustration of the objective similarity
>>>> is to be found in Mr Hay¢s frank admission of a causal connection
>>>> between the two melodies and the fact that he sang the relevant bars of
>>>> Kookaburra when performing Down Under at a number of concerts over a
>>>> period of time from about 2002."
>>>>
>>>> That is, the fact that the riff was copied from "Kookaburra" was
>>>> conceded.
>>>
>>> Yeah but its not a direct copy of the exact melody. Like I said they
>>> didn't do anything difference to 1000s of other bands. Maybe they were
>>> stupid to admit it but it doesn't make the legal action any less of a
>>> money grubbing joke
>>>
>>>
>>
>> It doesn't have to be a copy of the whole song to be infringing. The legal
>> issue is whether it's a copy of a substantial part. The judgement goes
>> into some detail about this, and the conclusion is that it is a copy of a
>> substantial part.
>
> OK, but if the infringing started 25+ years ago and the case only recently
> (not sure, perhaps 8 years) then why didn't the copyright holder act the
> second the song came out? It might be argued they delayed challenging it
> until they realised how much profit was being generated.
It appears that the copyright holder didn't realise until relatively
recently that their copyright was being infringed.
> This brings me back to: If you didn't raise the infringment within a
> reasonable timeframe, you can't expect royalties to be backdated to the time
> of said infringement? With trademarks (admittedly a slightly different
> issue) a failure to protect your trademark means you miss out on crying
> foul....
But in any case, it's not reasonable to have expected them to notice
before Down Under had received significant success. Prior to that,
there's every chance they'd never have heard Down Under. So at the point
where they'd noticed, there would have had to be a negotiation as to
what was an appropriate proportion of the royalties. The fact that this
case has reached court means that no such agreement has been reached.
In the absence of an agreement, the copyright holder could reasonably be
expected to do nothing until the potential financial reward outweighed
the financial risks of going to court. It would be hugely wasteful if
people had to litigate merely to protect possible future interests,
rather than to recover actual losses.
Note that the court has yet to decide how much the copyright holder
should get.
Sylvia. |