Comments on: 3 Count: Down Under 3x

By: Jonathan Bailey

Jonathan Bailey — Fri, 05 Feb 2010 22:18:46 +0000

Like you, I’m uneasy about calling it plagiarism. While I believe it was unattributed (I don’t have the liner notes so I can’t say for certain) it is a very well known melody, even I remember singing it in elementary school in the 80s, and I don’t think there was any attempt to claim it as their own. At worse, it is a case of plagiarism technically, but not in spirit.

I also largely agree that the verdict would likely be different in the U.S. if it were truly fought. The problem is that record labels here in the U.S. are hesitant to make fair use arguments because they don’t want what they say to bite them later. I think the legal realities in the U.S. are different (Fair use vs. fair dealing) but I don’t think the practical ones are.

Sadly, in the U.S. this case would have likely been settled quickly for a nice sum of money…

By: Jonathan Bailey

Jonathan Bailey — Fri, 05 Feb 2010 17:18:46 +0000

Like you, I'm uneasy about calling it plagiarism. While I believe it was unattributed (I don't have the liner notes so I can't say for certain) it is a very well known melody, even I remember singing it in elementary school in the 80s, and I don't think there was any attempt to claim it as their own. At worse, it is a case of plagiarism technically, but not in spirit.

I also largely agree that the verdict would likely be different in the U.S. if it were truly fought. The problem is that record labels here in the U.S. are hesitant to make fair use arguments because they don't want what they say to bite them later. I think the legal realities in the U.S. are different (Fair use vs. fair dealing) but I don't think the practical ones are.

Sadly, in the U.S. this case would have likely been settled quickly for a nice sum of money…

By: Eric

Eric — Thu, 04 Feb 2010 21:26:00 +0000

I know that the BBC article uses the term "plagiarize," but isn't that really a misuse of the term? Men-at-Work didn't try to pass the snippet off as their own work. The were deliberately using the popular song to invoke Australia. It was doing so with a copyrighted song, to be sure, but my understanding is that they were never claiming the melody to be original. Wouldn't this better be titled, " Men At Work Lose Copyright Infringement Case in Australia"?

For my part, I'm all for "victories for the underdog," but this is a terrible decision. If this were tried in the United States, I would think this would have had a pretty strong fair use defense. It is highly transformative, using only as much as is necessary, and has no effect whatsoever on the market for the original song. It might even count as parody under the Campbell v. Acuff Rose standard, though that might be trickier…

By: Eric

Eric — Thu, 04 Feb 2010 21:26:00 +0000

I know that the BBC article uses the term “plagiarize,” but isn’t that really a misuse of the term? Men-at-Work didn’t try to pass the snippet off as their own work. The were deliberately using the popular song to invoke Australia. It was doing so with a copyrighted song, to be sure, but my understanding is that they were never claiming the melody to be original. Wouldn’t this better be titled, ” Men At Work Lose Copyright Infringement Case in Australia”?

For my part, I’m all for “victories for the underdog,” but this is a terrible decision. If this were tried in the United States, I would think this would have had a pretty strong fair use defense. It is highly transformative, using only as much as is necessary, and has no effect whatsoever on the market for the original song. It might even count as parody under the Campbell v. Acuff Rose standard, though that might be trickier…