If you're the copyright owner of a song, and a couple of bars of the melody of that song get quoted in another song that is played all over the world, and you didn't notice until a game show pointed the fact out 27 years later, you are NOT entitled to 60% of the royalties.
Colin Hay's response.
I support almost everything he says, but I have to say that I don't buy his assertion that it was an unconscious reference. It was not written into the song, that's for sure, but I find it difficult to believe that flautist Greg Ham was not aware of what he was doing, even if his bandmates weren't.
As Hay points out, Ham was not one of the songwriters. And this brings up a more important issue about what constitutes composition and songwriting. Creating contemporary music is not like it was in the 1920s where the composer or bandleader told the musicians what to do and that was it. In most modern music, the songwriter brings the structure of the song and often lets the players create their own parts. Even if those parts become a signature of the song, like Greg Ham's flute part, it doesn't necessarily mean they get a composition credit. For example, think of Clare Torrey's soaring, improvised vocal on Pink Floyd's The Great Gig in the Sky. It's a highlight of the album and for that, she was paid a £40 session fee and that was it. Herbie Flowers' harmonised double-bass line that characterises Lou Reed's Walk on the Wild Side? He only suggested it because he would be paid double if he played two parts. Elliot Randall's instantly recognisable guitar solo on Reelin' in the Years by Steely Dan? No credits, just another day at the office.
Now, I'm not saying that Colin Hay and Ron Strykert are heels for not giving Greg Ham a songwriting credit. That's just the way bands work. But it does raise the question of whether Hay and Strykert should have to answer for a part that was created by Greg Ham. Should they now sue Ham for dropping them in this, however inadvertently?
In a way, the court had to make the ruling it did because the song, as released, does copy a couple of bars of Kookaburra (although "copy" is an awfully strong word for what is really quoting or a variation on a theme, which is a a practice as old as music itself). The question now is one of compensation for those who bought the rights to Kookaburra in 1990 having absolutely no idea what they had. The publishers have stated that they want as much as they can get, which tells you exactly how much they care about Marion Sinclair's legacy.
I say, give her a co-writing credit, give the publishers fifty bucks and a slab, then make them pay costs.
In the meantime, I'm urging everyone to go to iTunes, or their download store of choice, and buy a Men at Work song to compensate. It worked for keeping Idol of the Number 1 spot in Britain, so it can work again. Who Can it Be Now? or Overkill would be good choices.
Excellent further analysis HERE.