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Argos
2010-Feb-04, 02:35 PM
On the BBC (http://news.bbc.co.uk/2/hi/entertainment/8497433.stm)

Aussie band 'Men At Work' has lost a plagiarism case involving their song "Down Under", which is supposedly a copy of the traditional song "Kookaburra Sits in the Old Gum Tree".

Well, I just heard an excerpt of the traditional song featured on the BBC story, and it seems that the controversial passage spans only one [the initial] bar. Here in my country it requires 4 bars to characterize plagiarism [based on past cases].

What do you [especially the Aussies] think?

Fazor
2010-Feb-04, 02:43 PM
Not an Aussie, but I don't think it'd be fair to call plagiarism over a single bar of music. Particularly for two different songs in completely different genres.

I wonder if I could move to the land down under, and copyright the use of the C scale? :-P

Delvo
2010-Feb-04, 03:34 PM
If the song is "traditional", who owns it and how?

Argos
2010-Feb-04, 03:42 PM
Well, maybe 'traditional' is an exaggeration on my part [in fact Iīve heard the term on the Brazilian media - this word is not part of the BBC story]. It was written by Marion Sinclair in 1934. Anyway, it would be public domain by now.

Fazor
2010-Feb-04, 03:46 PM
Anyway, it would be public domain by now.

Could be. I believe family members [edit: or other rights holders, like corporations] have the right to renew copyrights though, and it only becomes public domain after someone fails to, or no longer exists to, extend these. I could be wrong. And I certainly don't know how it works in Australia.

Daffy
2010-Feb-04, 03:58 PM
Could be. I believe family members [edit: or other rights holders, like corporations] have the right to renew copyrights though, and it only becomes public domain after someone fails to, or no longer exists to, extend these. I could be wrong. And I certainly don't know how it works in Australia.

Last I checked...and it has been many years, Australia conformed to international copyright agreements. A song written in 1934 would very likely not be in the public domain. IIRC (and I am not sure about the details), a song written then would have had 28 years to be renewed, at which time it would have been good for another 67 years. And I am pretty sure even that could be renewed under recent changes (prompted by Disney). Works now are copyrighted for the life of the author, plus 70 years.

George Harrison lost his plagiarism suit over 3 notes...the standard now is higher.

Buttercup
2010-Feb-04, 03:58 PM
I saw that headline.

The theme to Hogan's Heroes sounds note-for-note exactly like an old hymnal [probably penned in the late 1800s]. I think its title is "Whosoever Surely Meaneth Me."

I'm surprised they didn't get slapped with a lawsuit. Seriously, you can sing that hymn's "chorus" to that theme. :rolleyes:

SolusLupus
2010-Feb-04, 04:05 PM
Again, it depends on who owns copyright.

Fazor
2010-Feb-04, 04:05 PM
Makes sense Daffy; I'm more familiar with it through my (limited) use of public domain literature. I've noticed that you typically don't find anything much newer than first-decade 1900's, though there's always exceptions.

grant hutchison
2010-Feb-04, 04:18 PM
George Harrison lost his plagiarism suit over 3 notes...the standard now is higher.This thread, and this quote in particular, reminds me compellingly of Spider Robinson's short story Melancholy Elephants (http://www.spiderrobinson.com/melancholyelephants.html).
(The link takes you to full text hosted on Robinson's own website. The whole story spans three webpages. I think it's an interesting read, if anyone has a little time to spare.)

Grant Hutchison

Daffy
2010-Feb-04, 04:26 PM
This thread, and this quote in particular, reminds me compellingly of Spider Robinson's short story Melancholy Elephants (http://www.spiderrobinson.com/melancholyelephants.html).
(The link takes you to full text hosted on Robinson's own website. The whole story spans three webpages. I think it's an interesting read, if anyone has a little time to spare.)

Grant Hutchison

I am a huge SR fan, but have never read that story. I'll check it out!

Daffy
2010-Feb-04, 04:28 PM
Makes sense Daffy; I'm more familiar with it through my (limited) use of public domain literature. I've noticed that you typically don't find anything much newer than first-decade 1900's, though there's always exceptions.

It's definitely a gray area...I have released songs under the "Trad., Arr." moniker, but there is always a nagging worry that someone will have copyrighted it under their own name!

Argos
2010-Feb-04, 04:30 PM
George Harrison lost his plagiarism suit over 3 notes...the standard now is higher.

Rod Stewart lost his "Do Ya think Iīm Sexy" case against a Brazilian composer [Jorge Ben - The Song Taj Mahal (http://www.youtube.com/watch?v=-M-bZ1tbHw8&feature=related) and the famous refrain] in the early 80īs over 4 bars.

SeanF
2010-Feb-04, 05:30 PM
Huey Lewis sued Ray Parker, Jr, on the grounds that "Ghostbusters" was plagiarized from "I Want a New Drug."

I never noticed the similarity before reading about the lawsuit, which, IIRC, was settled out of court.

Grey
2010-Feb-04, 05:38 PM
Man, they'll have to sue a lot of girl scouts for not paying royalites, then. :)

Fazor
2010-Feb-04, 05:40 PM
This thread, and this quote in particular, reminds me compellingly of Spider Robinson's short story Melancholy Elephants (http://www.spiderrobinson.com/melancholyelephants.html).
(The link takes you to full text hosted on Robinson's own website. The whole story spans three webpages. I think it's an interesting read, if anyone has a little time to spare.)

Grant Hutchison

Thank you for that, Grant, it was one of the more enjoyable things I've read in a long while.

Daffy
2010-Feb-04, 05:42 PM
Huey Lewis sued Ray Parker, Jr, on the grounds that "Ghostbusters" was plagiarized from "I Want a New Drug."

I never noticed the similarity before reading about the lawsuit, which, IIRC, was settled out of court.

Well, the chords are pretty much identical. What I never understood was the fact that about 100,000 (rough estimate) rock songs use the same chords. Although if you listen closely, the melody is kinda similar...I dunno; I'm on the fence with that one.

grant hutchison
2010-Feb-04, 06:03 PM
Thank you for that, Grant, it was one of the more enjoyable things I've read in a long while.Pleasure. :)
It has stuck in my mind for a few decades, so I was pleased to find an on-line version I could point people at, in response to this thread.

Grant Hutchison

sabianq
2010-Feb-04, 06:38 PM
it seems that there are many many cases in the music industry where artists have taken lyrics from another band/artist and reworked the music to fit their own..

one example i can think of off the top of my head is Lake of Fire origionally written by The Meat Puppets in 1984 then rearranged 10 years later by Kurt Cobain in Nirvana's Unplugged in New York Album..

although i should point out that Kurt gave cretit to The Meat Puppets at the beginning of the song.

there are many examples of music that has been rearranged throught history... Huddie Ledbetter "Lead Belly" is a good example, his work shows up in many modern mucisc rearrangments.
his most famous is "House of the Rising Sun".
It is interesting that most people do not realize that the modern version(s) are adaptions from his old folk song...
(yes, i am aware that copyrights run out)

i just wonder if adaptions and rearrangments of music constitute copyrigh violations...

Fazor
2010-Feb-04, 06:46 PM
one example i can think of off the top of my head is Lake of Fire origionally written by The Meat Puppets in 1984 then rearranged 10 years later by Kurt Cobain in Nirvana's Unplugged in New York Album...

That's a "cover", done with the permission of the original artist. In fact, the Meat Puppets played it with them in that show. There's a handful of covers on that album. "Jesus don't want me for a sunbeam", "Lake of fire", "Man who sold the world", "My girl" . . . probably others that I can't think of off the top of my head.

And you could technically say that the rest were acoustic covers of their own songs ;) But that has nothing to do with copyright.

pzkpfw
2010-Feb-04, 07:42 PM
What annoys me about this case is that the people doing the suing are not the original writer or her descendants.

The people suing are a company that bought the rights to the song about 20 years after the alleged infingement.

(And the company only sued another 7 years or so after they bought those rights.)

(And the "borrowing" occured about 45 years after the original was written.)


Something just doesn't smell right about all that.

Gillianren
2010-Feb-04, 07:57 PM
I saw that headline.

The theme to Hogan's Heroes sounds note-for-note exactly like an old hymnal [probably penned in the late 1800s]. I think its title is "Whosoever Surely Meaneth Me."

I'm surprised they didn't get slapped with a lawsuit. Seriously, you can sing that hymn's "chorus" to that theme. :rolleyes:

Well, hymn--"hymnal" is the book hymns appear in. But if it is from the late 1800s, even by America's stretched copyright laws, it's public domain now.


it seems that there are many many cases in the music industry where artists have taken lyrics from another band/artist and reworked the music to fit their own..

Yup. Covers. Happens all the time.


although i should point out that Kurt gave cretit to The Meat Puppets at the beginning of the song.

And, presumably, the liner notes, where it's legally more important.


there are many examples of music that has been rearranged throught history... Huddie Ledbetter "Lead Belly" is a good example, his work shows up in many modern mucisc rearrangments.
his most famous is "House of the Rising Sun".
It is interesting that most people do not realize that the modern version(s) are adaptions from his old folk song...
(yes, i am aware that copyrights run out)

Lead Belly didn't write it, either. It's a folk song. Regardless of who wrote it or when, the original writer is unknown, so they couldn't collect royalties anyway. Heck, the oldest known recording is from nearly fifteen years before his. No one gets royalties on "Barbara Allen," either.


i just wonder if adaptions and rearrangments of music constitute copyrigh violations...

There are specific laws covering them. So long as you have permission from the rights holder, and doubtless make arrangements regarding royalties, you're golden.

sabianq
2010-Feb-04, 08:00 PM
i know that in the music buisness, the writer does not necessarily have or hold all of the copyrights to a given musical song..

the recording company or record label who produced the number is usually the copyright holder.
(unless other arrangments have been made)

http://www.lovemusic.co.nz/index.php/learn/58-general-faq/649-1-who-actually-holds-the-copyright-in-a-piece-of-music-artist-record-company-composerpublisher-or-all-three


There is generally more than one owner of rights in any given track. The people who wrote the tune and the lyrics and/or their publishers own authors' rights, which is the classic copyright. The artist that performs that music has certain 'related rights' as a performer. And a record label typically owns the copyright or producer's related rights in the particular recording of the song. Permission is needed from all of these people who created the music-or those to whom they have assigned their rights-in order to use the music.

Fazor
2010-Feb-04, 08:02 PM
There are specific laws covering them. So long as you have permission from the rights holder, and doubtless make arrangements regarding royalties, you're golden.

And then there's "Fair Use" which is what I believe artists like Weird Al enjoy . . . though from what I hear, Al gets permission anyway. Of course there was the great "Amish Paradise" debacle, where he thought he had permission but didn't. But he wasn't sued over it.

sabianq
2010-Feb-04, 08:07 PM
if anybody is interested, here is the Copyright Act (circular 73) from the copyright office.

Compulsory License for Making and Distributing Phonorecords
http://www.copyright.gov/circs/circ73.pdf

SeanF
2010-Feb-04, 08:09 PM
Well, hymn--"hymnal" is the book hymns appear in.
On the subject of grammar, is the thread title correct? Or should it be "Men at Work Lose Plagiarism Case"?

Argos
2010-Feb-04, 08:11 PM
On the subject of grammar, is the thread title correct? Or should it be "Men at Work Lose Plagiarism Case"?

Fair enough. :)

Well, as I see it, a rockīnīroll Band is a unity, a single entity.

But good question anyway.

sabianq
2010-Feb-04, 08:11 PM
a song can only be covered legally with premission or if it does not fall under or is not subject to "mechanical licensing" as in the case of "compulsory mechanical license".

so covering a song can absolutly be copyright infringment.

http://en.wikipedia.org/wiki/Mechanical_license

Fazor
2010-Feb-04, 08:24 PM
Fair enough. :)

Well, as I see it, a rockīnīroll Band is a unity, a single entity.

But good question anyway.

I agree with the title as-is. 'Men at Work' is a singular title of a group. Just like you wouldn't say "Metalica lose lawsuit".

Argos
2010-Feb-04, 08:46 PM
Ok, Fazor, thatīs my understanding too, but I just noticed that the BBC presents the title as SeanF suggests. Maybe they [it] are [is] missing what 'Men At Work' is [are] supposed to be. :)

Gillianren
2010-Feb-04, 08:48 PM
And then there's "Fair Use" which is what I believe artists like Weird Al enjoy . . . though from what I hear, Al gets permission anyway. Of course there was the great "Amish Paradise" debacle, where he thought he had permission but didn't. But he wasn't sued over it.

Weird Al is covered by the precedent of Irving Berlin et al. v. Mad Magazine, which protects your First Amendment right to parody. Had Coolio tried to sue, he would have lost. It's not quite the same as fair use, but I believe it's along the same general principle.

ETA--Yeah, I'd go with "Men at Work Loses," because it's an entity under a plural name, not an actual plural.

Fazor
2010-Feb-04, 08:56 PM
Ok, Fazor, thatīs my understanding too, but I just noticed that the BBC presents the title as SeanF suggests. Maybe they [it] are [is] missing what 'Men At Work' is [are] supposed to be. :)

And I'm certainly not the Shining Becon of Grammatical Truth (tm), but Gillian agrees, so that's good enough for me!

SeanF
2010-Feb-04, 09:51 PM
ETA--Yeah, I'd go with "Men at Work Loses," because it's an entity under a plural name, not an actual plural.
Would you also say, "New York Yankees Loses World Series"?

EDIT: We've discussed this before, haven't we? :)

kleindoofy
2010-Feb-04, 10:00 PM
... George Harrison lost his plagiarism suit over 3 notes ...
Almost, as far as I can recall.

It was three different tones, but five notes, and the order and rhythm were important. The first five notes in "My sweet Lord" and "He's so fine."

Btw, Harrison was found technically guilty, but the judge ruled that the plagiarism was not done purposefully.

ilsy74
2010-Feb-04, 11:19 PM
I am outraged, and think most fellow Aussies would be too.
It obviously sets a dangerous precedent.
If composers can not get inspiration from other songs, art and life events then the whole art of music might as well be dead and gone.
Influence? Yes there was. Plaigarism??? Well, no. Most musicians would tell you the melodies are different. There is a parallel to the 2 entirely different bits of each of the songs, only due to the same rhythm. But rhythm can not be copyrighted. Also the fact that the songs are in different styles suggests there was no intent to copy the song in question.
I am sure Larikin would like to copyright the human genome. But life doesnt work that way, get with reality, you unAustralian mob.

SolusLupus
2010-Feb-04, 11:30 PM
get with reality, you unAustralian mob.

That seems unnecessary.

ilsy74
2010-Feb-05, 12:01 AM
I believe Larrikin are unAustralian. The song's copyright was originally protected by the Girl Guides Association of Australia. The song was written by the goodness of Marion Sinclair's heart, who wrote it at a girl's gamp, without ever intending to make money from it. That is why she gave the song away the year before she passed to the then state run South Australian Music board. No-one ever claimed royalties for the 1,000s of schools that taught their pupils this song for all these decades from 1934. It was practically public domain. This is a technical grab for cash. Larrikin do not care about the future of the creative process, nor do they understand why we have music in society.

sabianq
2010-Feb-05, 12:01 AM
you cant copyright the human genome..
that is silly..


it is a patent
http://news.nationalgeographic.com/news/2005/10/1013_051013_gene_patent.html

ilsy74
2010-Feb-05, 12:08 AM
you cant copyright the human genome..
that is silly..


it is a patent
http://news.nationalgeographic.com/news/2005/10/1013_051013_gene_patent.html

This whole debate boils down to what IS ownership, and what is ethical to own and what is not.
The song KOOKUBURUGH comes from a much older folk song.
Nothing is born in a vaccuum.

ilsy74
2010-Feb-05, 12:14 AM
That seems unnecessary.

That was polite. People who litigate over a quiz show, and display no knowledge in music or the creative process show no signs of humanity.

Daffy
2010-Feb-05, 12:15 AM
Weird Al is covered by the precedent of Irving Berlin et al. v. Mad Magazine, which protects your First Amendment right to parody. Had Coolio tried to sue, he would have lost. It's not quite the same as fair use, but I believe it's along the same general principle.

ETA--Yeah, I'd go with "Men at Work Loses," because it's an entity under a plural name, not an actual plural.

Gillianren has me on ignore, so she won't see this. However, this is not necessarily true. a) Weird Al gets permission before doing his songs; and b) Jimmy Page Successfully sued Little Roger and the Goosebumps for the brilliant "Stairway to Gilligan's Island" parody. Musical parody does not include using the identical melody...parody would be using a melody that is merely similar. If you check Weird Al's CDs, there will be some sort if listing of song publishers who gave permission.

ilsy74
2010-Feb-05, 12:16 AM
you cant copyright the human genome..
that is silly..


it is a patent
http://news.nationalgeographic.com/news/2005/10/1013_051013_gene_patent.html

we are talking OWNERSHIP here. what are you talking about?

Daffy
2010-Feb-05, 12:19 AM
Almost, as far as I can recall.

It was three different tones, but five notes, and the order and rhythm were important. The first five notes in "My sweet Lord" and "He's so fine."

Btw, Harrison was found technically guilty, but the judge ruled that the plagiarism was not done purposefully.

Well, yes, order and rhythm are crucial...otherwise we would have exhausted the 12 tones in Western music centuries ago. "Sorry, pal, but I have already used middle C!"

I believe the term was "unconscious plagiarism." IIRC, Harrison solved the problem by buying the publishing company for "He's So Fine." Check me on that, as I may be wrong; but I think that's what he did.

My late wife had a song plagiarized and used in a major movie..."parody," was never even offered as a defense. We gave it up because we didn't have enough money for legal costs, and the damages were not likely to justify a contingency basis. The studio deleted in from the DVD, though.

HenrikOlsen
2010-Feb-05, 12:31 AM
Weird Al is covered by the precedent of Irving Berlin et al. v. Mad Magazine, which protects your First Amendment right to parody. Had Coolio tried to sue, he would have lost. It's not quite the same as fair use, but I believe it's along the same general principle.
I think that only applies to the parody of the lyrics, he's using the melody unmodified and that's copyright infringement unless he's got permission.
Which he almost invariably gets when he asks.

Mad magazine didn't actually play the music, so that suit can't be used as precedence.

kleindoofy
2010-Feb-05, 01:10 AM
... he's using the melody unmodified and that's copyright infringement unless he's got permission. ...
I may be wrong, but I think it's the other way around.

If you don't modify the melody, nobody can stop you from using the song, but you have to pay royalties.

If you do modify the piece (melody, harmony), you have to have permission.

I'm quoting from memory, so I may not have it right.

Daffy
2010-Feb-05, 01:19 AM
I may be wrong, but I think it's the other way around.

If you don't modify the melody, nobody can stop you from using the song, but you have to pay royalties.

If you do modify the piece (melody, harmony), you have to have permission.

I'm quoting from memory, so I may not have it right.

It depends largely on which performing rights organization the writer and publisher belong to, BMI, ASCAP, PRO, etc.; and who own the publishing rights. For example, Chrissie Hynde was not able to stop Rush Limbaugh from using her song for his theme song; otoh, artists have quite often been able to prevent their songs from being used in ways they find objectionable. There are a LOT of variables.

sarongsong
2010-Feb-05, 01:33 AM
February 4, 2010
...."...the flute riff...infringes on the copyright of Kookaburra because it replicates in material form a substantial part of Ms. Sinclair's 1935 work," Federal Court Justice Peter Jacobson...ordered the parties back in court Feb. 25 to discuss the compensation Larrikin Music should receive...
nctimes.com (http://www.nctimes.com/entertainment/music/article_70056a9a-b035-57b2-89dd-8f26130a37ef.html)..."to discuss the compensation"... http://www.bautforum.com/images/icons/icon10.gif

SeanF
2010-Feb-05, 01:42 AM
I think that only applies to the parody of the lyrics, he's using the melody unmodified and that's copyright infringement unless he's got permission.
Which he almost invariably gets when he asks.

Mad magazine didn't actually play the music, so that suit can't be used as precedence.
Try Campbell v. Acuff-Rose Music, Inc., then. Too Live Crew requested permission from Acuff-Rose to record a parody of Roy Orbison's, "Oh, Pretty Woman." Acuff-Rose refused, but Too Live Crew went ahead and recorded it anyway.

The lawsuit went all the way to the US Supreme Court, who ruled in Too Live Crew's favor.

"Weird Al," as has been noted, will not record a parody without the permission of the original artist, and he always credits the original song writers on his album notes, but that is simple professional courtesy on his part.

Daffy
2010-Feb-05, 01:46 AM
The lawsuit went all the way to the US Supreme Court, who ruled in Too Live Crew's favor.

"Weird Al," as has been noted, will not record a parody without the permission of the original artist, and he always credits the original song writers on his album notes, but that is simple professional courtesy on his part.

And yet Jimmy Page (as songwriter) won the exact same type of suit. As I said, there are many variables.

Btw, although Page succeeded in having most copies of "Stairway to Gilligan's Island" taken off the market, you can find it on the internet. It's worth the time. Thank me later.

SeanF
2010-Feb-05, 01:54 AM
Actually, I guess what happened in Campbell vs. Acuff-Rose was that SCOTUS simply ruled that the Court of Appeals had over-emphasized the commercial nature of the parody, and remanded the case back to them for further proceedings. The two parties reached a settlement before the case was reheard.

I do believe it is still pretty widely held as a strong precedent for parody as fair use, though, and - being much later - would override Page's case, anyway.

Daffy
2010-Feb-05, 02:04 AM
Actually, I guess what happened in Campbell vs. Acuff-Rose was that SCOTUS simply ruled that the Court of Appeals had over-emphasized the commercial nature of the parody, and remanded the case back to them for further proceedings. The two parties reached a settlement before the case was reheard.

I do believe it is still pretty widely held as a strong precedent for parody as fair use, though, and - being much later - would override Page's case, anyway.

Well, I am not an attorney, so you could easily be right. Plus, my direct involvement with this stuff ended about 9 years ago. However, there are companies that exist specifically to help people obtain rights to use songs (Harry Fox, for example)...they would be out of a job if anyone could use anything they want as long as they pay royalties.

I wanted to record a George Harrison song a while back (I forget which one) and was not able to get permission. But maybe things have changed; I don't know for certain. Up till then, there were variables such as how many copies you were going to release, whether or not lyrics could be changed (usually not), and (in some cases) approval of the original songwriter, and on and on. It is not cut and dried.

I stand by one statement, though: "Stairway to Gilligan's Island" is brilliant. ;)

(Am I the only one who thinks the word SCOTUS sounds naughty?)

Gillianren
2010-Feb-05, 02:46 AM
"Weird Al," as has been noted, will not record a parody without the permission of the original artist, and he always credits the original song writers on his album notes, but that is simple professional courtesy on his part.

In Berlin, the songs were specifically noted as being "to the tune of," and the fact that they weren't played that way was that, well, it's a magazine. The ruling held that, since the songs were properly credited, it was okay. I'd have to dig out the books I have all this in for more details, and my apartment is still not put back together from our deluge. I should look to that.

SeanF
2010-Feb-05, 02:54 AM
Well, I am not an attorney, so you could easily be right. Plus, my direct involvement with this stuff ended about 9 years ago. However, there are companies that exist specifically to help people obtain rights to use songs (Harry Fox, for example)...they would be out of a job if anyone could use anything they want as long as they pay royalties.

I wanted to record a George Harrison song a while back (I forget which one) and was not able to get permission. But maybe things have changed; I don't know for certain. Up till then, there were variables such as how many copies you were going to release, whether or not lyrics could be changed (usually not), and (in some cases) approval of the original songwriter, and on and on. It is not cut and dried.
Oh, absolutely not cut and dried. It's almost a given that if you're playing the song "straight," you need to get permission from the copyright holder. And even in the case of parody, there could be a question. I would think, for example, that if you simply write new sincere lyrics, that wouldn't count - but "Weird Al"'s lyrics are anything but sincere. :)

Jens
2010-Feb-05, 03:28 AM
On the subject of grammar, is the thread title correct? Or should it be "Men at Work Lose Plagiarism Case"?

Yes, we've discussed this before. It's grammatically OK either way.

Jens
2010-Feb-05, 03:37 AM
One thing that bugs me about this is that the music company suing says they might ask for 60% of the royalties of the song. That seems totally out of proportion to me. It was a brilliant song, even without that bar of the flute solo. If they were asking for 5%, I'd be a lot more sympathetic.

Tensor
2010-Feb-05, 03:59 AM
Another case was Fisher vs Dees (http://openjurist.org/794/f2d/432). Where Rick Dees used 29 seconds of a Johnny Mathis song (written by Marvin Fischer and Jack Segal). He used the exact music and just changed the words and the court (and the appeal court) ruled in his favor. Of course, he only used 29 seconds. From reading the decision, the court may not have been happy if he had done the whole song, but then again, they may have.

Spoons
2010-Feb-05, 04:11 AM
Agreed Jens. 60% is completely unreasonable. That suggests that only 40% of the credit for the success of the song was due to the artistic efforts of Men At Work.

I saw someone say the tune is not the same - that's rubbish, it is the same tune, but it's only eleven notes (I think), that pops up here and there.

I think it's a disgrace that these guys are getting 60%. 5 or 10% wouldn't seem so bad, but this would, I imagine, financially ruin these guys.

I'm just waiting to see how much Kraft get for the mention of Vegemite, which was clearly the remainder of the artistic portion of the song, and the reason for it's success. ::rolls eyes::

tusenfem
2010-Feb-05, 07:23 AM
we are talking OWNERSHIP here. what are you talking about?


ilsy74, please tone it down a bit, if you cannot discuss in a nice way, then you will not discuss here at all.
one "friendly reminder" infraction given.

chrlzs
2010-Feb-05, 09:36 AM
Agreed Jens. 60% is completely unreasonable. That suggests that only 40% of the credit for the success of the song was due to the artistic efforts of Men At Work.

I saw someone say the tune is not the same - that's rubbish, it is the same tune, but it's only eleven notes (I think), that pops up here and there.

I think it's a disgrace that these guys are getting 60%. 5 or 10% wouldn't seem so bad, but this would, I imagine, financially ruin these guys.

I'm just waiting to see how much Kraft get for the mention of Vegemite, which was clearly the remainder of the artistic portion of the song, and the reason for it's success. ::rolls eyes::


I agree, and re-iterate the point that the original tune was derivative in itself, and that given its nature, as a kid's song originally donated to the GGA, that this looks exactly like a money grab by Larrikin Music. NOTE that Larrikin Music bought these rights (for AU$6100) about ten years AFTER the Land Down Under was a hit... I'd love to know more about the nature of that purchase, and to hear from those who sold it.

((ETA, purchased from the SA State Library, it seems?))

http://www.theaustralian.com.au/news/arts/larrikin-music-publishing-snares-land-down-under-royalties/story-e6frg8n6-1225826893478

So, my attitude is simply to not *ever* buy anything distributed/produced by Larrikin Music or their affiliates again - my little personal boycott. One person doing this means little, but this topic is being talked about across forums and the Internet...


Crikey, fair suck of the sauce bottle, mate!

ilsy74
2010-Feb-05, 10:02 AM
"NOTE that Larrikin Music bought these rights (for AU$6100) about ten years AFTER the Land Down Under was a hit... I'd love to know more about the nature of that purchase, and to hear from those who sold it."

Actually Larrikin bought the rights 19 years after Men At Work's "Downunder" song (2000). The agreement to their copy right ownership was back-dated to 1990, 9 years after the hit song.

HenrikOlsen
2010-Feb-05, 11:27 AM
Try Campbell v. Acuff-Rose Music, Inc., then. Too Live Crew requested permission from Acuff-Rose to record a parody of Roy Orbison's, "Oh, Pretty Woman." Acuff-Rose refused, but Too Live Crew went ahead and recorded it anyway.
I sit corrected.

Interesting aside is that Lord of the Dance1 is recognized as a copyrighted work in its own right, though the change from Simple Gifts2 is small enough that they're often confused and people have used the Carter version without recognition or attribution in the belief it's out of copyright, Ronan Hardiman with Flatley's Lord of The Dance is only one such example.

1) written and composed by Sydney Carter, copyright 1963 Stainer & Bell Ltd. London, England
1) written and composed by Elder Joseph Brackett around 1848

Delvo
2010-Feb-05, 11:51 AM
I saw someone say the tune is not the same - that's rubbish, it is the same tune, but it's only eleven notes (I think), that pops up here and there.It's only the same for the first four or five notes. After that, they run parallel to each other on different pitches, making note changes of the same intervals in the same rhythm but with "Down Under" running on consistently lower pitches (relative to the starting point) than the kukabura song. If they were played together simultaneously, they'd start out the same and then split into something like the way singers in a quartet sing together in different ranges (although depending on the exact distance between them and the chords behind them, they might not sound so harmonious together).

Argos
2010-Feb-05, 12:07 PM
The article featured in the OP features both songs. To my ears, only the first bar is similar. This kind of similarity happens very frequently in the Pop music universe.

Spoons
2010-Feb-05, 12:12 PM
I don't know... it's good enough to seem like it, and I remember having to learn and play it over and over in primary school.

It always seemed like that tune to me, though that just didn't seem that important to the song either. The lyrics and little light fangy guitar licks were the bits that ran shivers up my spine as a kid.

As an adult it's just Danny Greens song too me now.

Argos
2010-Feb-05, 02:32 PM
Men at Work's Colin Hay has issued an angry statement calling the Down Under plagiarism case "opportunistic greed".

Link (http://news.bbc.co.uk/2/hi/entertainment/8499973.stm)

Spoons
2010-Feb-05, 03:39 PM
It sure is.

Where were these guys 20 something years ago?

If protecting art, they would've been there earlier - they're just there to grab money.

Donnie B.
2010-Feb-05, 07:03 PM
Would you also say, "New York Yankees Loses World Series"?

Or, to stick with the name of a musical ensemble, consider these:

- The Beatles is the top musical act of 1964.
- The Beatles is breaking up.
- The Beatles is announcing its impending breakup.

None of those seems right to me, though the first might just squeak by if The Beatles was italicized.

But I agree that "Men At Work is..." doesn't sound too bad. So even the fact that the group's name is a plural doesn't guarantee that the plural verb is required.

Could this be a situation where the is no hard and fast rule set? Maybe "sounds right" is the best you can do.

kleindoofy
2010-Feb-05, 10:24 PM
There are cases of intentional, yet innocent plagiarism.

When Eric Carmen composed "All by Myself," he intentionally used music originally composed by Sergei Rachmaninoff (from the 2nd movement of the 2nd piano concerto).

Here's Carmen (http://www.youtube.com/watch?v=oQAT0Ln6ggc) (Youtube video)
Here's Rachmaninoff (http://www.youtube.com/watch?v=jWRb90BRB5w) (Youtube video, jump to the clarinet solo at 1:56)

Wikipedia writes:

The verse borrows very heavily from the second movement (Adagio Sostenuto) of Sergei Rachmaninoff's Piano Concerto No. 2 in C minor, Opus 18, which Carmen believed was in the public domain. Having found it was not, only after the record had been issued, Carmen had to come to an agreement with the Rachmaninoff estate. Early versions, therefore, only give writing credits to Carmen, but later versions also credit Rachmaninoff.
http://en.wikipedia.org/wiki/All_by_Myself

Others weren't so honest.

Andrew Lloyd Webber stole "I Dont Know How To Love Him" (Jesus Christ Superstar) from Felix Mendelssohn (violin concerto, 2nd movement). As far as I know, he's never admitted it.

Here's Mendelssohn (http://www.youtube.com/watch?v=BJliZWvQbOA) (Youtube video, jump to 0:36)
Here's Webber (http://www.youtube.com/watch?v=Bn7exBrCiUI) (Youtube video, jump to 1:03)

It's not exactly the same, but it's pretty darn close.

Rumor has it that plagiarism is one of Webber's favorite hobbies.

chrlzs
2010-Feb-05, 11:24 PM
Link (http://news.bbc.co.uk/2/hi/entertainment/8499973.stm)

Going a little off topic, I would point out that Colin Hay has released a few solo albums, and they are highly underrated imo.. Look out for them if you like simple, interesting, thoughtful, cleverly written, sometimes quite weird (see below) ballads...


Boy was a dog he was my friend
And in the end I lost him
Sail on, sail on then, my Boy friend

Boy didn't like Italian men
And he would sometimes bite them
Chew on, chew on them, my Boy friend

Boy never played with small children
He would have rather chased them
Chase on, chase on then, my Boy friend

Boy never chased sticks or played games
He thought that they were beneath him
Howl on, howl on then, my Boy friend

Boy was a dog he was my friend
And in the end I lost him
Sail on, sail on then
Sail on, sail on then
My Boy friend..

SeanF
2010-Feb-06, 03:30 AM
When Eric Carmen composed "All by Myself," he intentionally used music originally composed by Sergei Rachmaninoff (from the 2nd movement of the 2nd piano concerto).
Much like Sting used some of Prokofiev's music (http://www.youtube.com/watch?v=n1scluzlPz0) for his song "Russians." (http://www.youtube.com/watch?v=4rk78eCIx4E) That was all above board, as well.

Gillianren
2010-Feb-06, 04:45 AM
The third theme to appear in the fourth movement of Dvorak's New World Symphony is "Three Blind Mice." That was assuredly public domain, though.

Delvo
2010-Feb-06, 05:53 AM
- The Beatles is the top musical act of 1964.
- The Beatles is breaking up.
- The Beatles is announcing its impending breakup.

None of those seems right to me, though the first might just squeak by if The Beatles was italicized.

But I agree that "Men At Work is..." doesn't sound too bad. So even the fact that the group's name is a plural doesn't guarantee that the plural verb is required.

Could this be a situation where the is no hard and fast rule set? Maybe "sounds right" is the best you can do.I think part of what makes it sound right or not to you appears to be the distance between the noun and the verb. The one you said sounds fine has some other, numberless words separating them.

sabianq
2010-Feb-06, 07:01 AM
hi there!


we are talking OWNERSHIP here. what are you talking about?

you said:

I am sure Larikin would like to copyright the human genome. But life doesnt work that way, get with reality, you unAustralian mob.


my comment was strictly satire..
i pointed out that yes a company can actually own a gene in the human body,
http://www.ornl.gov/sci/techresources/Human_Genome/elsi/patents.shtml

all i said was the gene thing is not a copyright, rather a patent.
when a DNA has been isolated, purified, or modified, it can be patented (owned)..


In general, raw products of nature are not patentable. DNA products usually become patentable when they have been isolated, purified, or modified to produce a unique form not found in nature.


Currently over three million genome-related patent applications have been filed.

and in essence, are they not kind of the same thing?
copyright for the written word
patent for a device..


is that what you mean when you typed:

Larikin would like to copyright the human genome
meaning larkin would like to "own" the human genome?
and you were suggesting that it cant be owned?
while i was showing that actually it can be owned..
http://www.ornl.gov/sci/techresources/Human_Genome/elsi/patents.shtml

i came back with a joke, saying that while DNA can already be "owned", it is through a patent, not a copyright..

i thought it was funny... apparently not..
oh well didnt mean to derail ya..
cheers!

oh yea, the patent lasts for 20 years...

HenrikOlsen
2010-Feb-06, 11:15 AM
I may be wrong here, but as far as I understand about gene patents, the method of extracting and purifying the sample is part of the patent, and it's the use of it, not the base pair sequence itself that is under patent.

ilsy74
2010-Feb-06, 02:13 PM
"I saw someone say the tune is not the same - that's rubbish, it is the same tune, but it's only eleven notes (I think), that pops up here and there."

It is 6 notes by my count. But the 6 notes are each in a different context, ie diff notes preceding and following them. The rhythm of the flute and the words to Kookuburru have the same rhythm and hence people finding it cute to mesh the 2 songs. I bet the songwriters did not even have it in mind when writing it. I am a song writer and I know how easy coincidences like that can occur. There are only 7 notes after all.

ilsy74
2010-Feb-06, 02:19 PM
It's only the same for the first four or five notes. After that, they run parallel to each other on different pitches, making note changes of the same intervals in the same rhythm but with "Down Under" running on consistently lower pitches

That's what I am trying to say - the notes are parallel, they are not the same. THat is they change relatively similarly, but only for 4-6 notes. Imagine the dangerous precendent this sets. Rock and pop music have always tried to be simple, and so there has been an etiquette that allowed some similarities, I mean you dont see Harry Belafonte suing every children's song for having similar note changes to Caribean music, and you can't have rap singers suing each other because the essence of what rap music is will have to go. We need to be fair as well as rational.

sabianq
2010-Feb-06, 02:48 PM
I may be wrong here, but as far as I understand about gene patents, the method of extracting and purifying the sample is part of the patent, and it's the use of it, not the base pair sequence itself that is under patent.

actually, i heard on npr about a case in court right now that is about that very issue.
i dont know much, will try to find a link, something about cancer.
the people who isolated the gene are saying that the gene itself not the way it was isolated is under patnet.

and that prevents anyone from working with it regardless of how it was obtained.

im gonna try to find the link

my jaw was on the floor of the car when i was listening to the story...

sabianq
2010-Feb-06, 03:01 PM
actually, i heard on npr about a case in court right now that is about that very issue.
i dont know much, will try to find a link, something about cancer.
the people who isolated the gene are saying that the gene itself not the way it was isolated is under patnet.

and that prevents anyone from working with it regardless of how it was obtained.

im gonna try to find the link

my jaw was on the floor of the car when i was listening to the story...

i was like yelling at the radio " you cant patnet a gene! that is like trying to patent tree bark" i felt really angry. in retrospect, its kinda funny.. but it is silly (in my world of logic anyway) to be able to patent a gean so other people cant even work with the gene...

grant hutchison
2010-Feb-06, 03:15 PM
actually, i heard on npr about a case in court right now that is about that very issue.
i dont know much, will try to find a link, something about cancer.This sounds like the recent case brought by the American Civil Liberties Union against Myriad Genetics, concerning their patent on genes BRCA1 and BRCA2, which are associated with breast and ovarian cancer. The claim is that the gene patents are stifling useful research by others. It's seen as a major test case to set limits on gene patents.
There should be enough search terms in there for you to check if it's the story you're thinking about.

Grant Hutchison

hhEb09'1
2010-Feb-06, 05:56 PM
The third theme to appear in the fourth movement of Dvorak's New World Symphony is "Three Blind Mice." That was assuredly public domain, though.And we don't have to talk about Mozart's variations on Twinkle, Twinkle, Little Star, which amazingly was written fifteen years after he died...

kleindoofy
2010-Feb-06, 08:59 PM
There is a difference between openly quoting themes, using them for a set of variations, mixing them into a thematic piece, and using them to create a new piece under one's own name without acknowledging the source.

Only the latter constitutes plagiarism.

ilsy74
2010-Feb-07, 09:59 AM
"my comment was strictly satire..
i pointed out that [B]yes a company can actually own a gene in the human body..."

I was with you. I used the verb Copyright because that is what record companies are good at doing.
There is more business in "Music business" these days then there is Music, unfortunately.
And I think it is frightening that in law the human genome can be patented. It comes from an arrogant but out-dated mind set that says that gravity does not exist until Mankind discovers it.
What your saying I am sure is right in LAW... But in ethics it is not. We are in an age where ethics are valued more than laws. All 16,000,000 of them. The laws must be based on ethics, and when the constitution was written the founders of our legal system, tried to ensure laws do not get misused. When they do, we must turn back to the original document.

HenrikOlsen
2010-Feb-07, 01:15 PM
And I think it is frightening that in law the human genome can be patented. It comes from an arrogant but out-dated mind set that says that gravity does not exist until Mankind discovers it.
Actually it comes from the very modern view that laws are there to protect business.

kleindoofy
2010-Feb-07, 11:13 PM
Actually it comes from the very modern view that laws are there to protect business.
That view is neither modern, nor very modern.

In the Middle Ages laws protected businesses almost to the point of there being a state mafia.

The craftsman guild system guaranteed a monopoly over almost all kinds crafts to a very small group, who in turn payed their dues to those who unsured them those rights, i.e. local nobility, etc. At times in certain areas, people weren't even allowed to bake bread at their homes since that right was reserved for the bakers' guild.

The same was true for trade. Groups like the Hanseatic League had a monopoly on trade and always paid their dues further up.

Consumers and artisans had little or no rights at all.

The very fact that patents and copyright were included in the primary text of the US constitution (something few people realize) was probably more revolutionary than the document itself and part of the disposal of the rights of nobility known around the world at that time:


To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
(Article I, Section 8)

The bad part today is that people are perverting and abusing those rights.

HenrikOlsen
2010-Feb-08, 04:02 AM
Ok, I should have said "not outdated" rather than "modern".

SolusLupus
2010-Feb-08, 04:02 AM
That view is neither modern, nor very modern.

In the Middle Ages laws protected businesses almost to the point of there being a state mafia.

The craftsman guild system guaranteed a monopoly over almost all kinds crafts to a very small group, who in turn payed their dues to those who unsured them those rights, i.e. local nobility, etc. At times in certain areas, people weren't even allowed to bake bread at their homes since that right was reserved for the bakers' guild.

The same was true for trade. Groups like the Hanseatic League had a monopoly on trade and always paid their dues further up.

Consumers and artisans had little or no rights at all.

The very fact that patents and copyright were included in the primary text of the US constitution (something few people realize) was probably more revolutionary than the document itself and part of the disposal of the rights of nobility known around the world at that time:


(Article I, Section 8)

The bad part today is that people are perverting and abusing those rights.

This post is awesome ----^


And very very true.

ilsy74
2010-Feb-08, 01:50 PM
Actually it comes from the very modern view that laws are there to protect business.

There has to be balance between protecting business (...from what exactly?) to the protection of innovation and creativity. We are getting to a situation where new things just can not be developed any more because of fear of being sued. You see it not only in music but in all sorts of spheres. We can not even get the green technology out there that will see an end to outdated polluting technologies, and that's just an example.

SeanF
2010-Feb-08, 03:01 PM
There has to be balance between protecting business (...from what exactly?) to the protection of innovation and creativity.
Most businesses are, ultimately, in the business of innovation and creativity. If they don't stand to profit from it, a business is just as unlikely as an individual is to create something new.

Daffy
2010-Feb-08, 03:54 PM
Most businesses are, ultimately, in the business of innovation and creativity. If they don't stand to profit from it, a business is just as unlikely as an individual is to create something new.

Well, some businesses stifle creativity in their competitors, if by no other means than by buying them up. Look at the history of Gateway and Amiga.

SeanF
2010-Feb-08, 05:23 PM
Well, some businesses stifle creativity in their competitors, if by no other means than by buying them up. Look at the history of Gateway and Amiga.
Yes, that's true. Still, if copyright/patent protection were not extended to businesses, businesses would not innovate.

Daffy
2010-Feb-08, 06:52 PM
Yes, that's true. Still, if copyright/patent protection were not extended to businesses, businesses would not innovate.

I agree, definitely.

Jens
2010-Feb-09, 01:31 AM
Yes, that's true. Still, if copyright/patent protection were not extended to businesses, businesses would not innovate.

It's an interesting position. But weren't there any innovations before the advent of patent law?

SeanF
2010-Feb-09, 01:47 AM
It's an interesting position. But weren't there any innovations before the advent of patent law?
There's certainly room for debate about ultimate causes, but just take a look at the technological innovations of the past 200 years compared to, oh, 2000 years before that. :)

Jens
2010-Feb-09, 02:00 AM
There's certainly room for debate about ultimate causes, but just take a look at the technological innovations of the past 200 years compared to, oh, 2000 years before that. :)

Yes, if you modify your statement from "businesses would not innovate" to "businesses would not innovate as quickly," then we definitely have room for a good discussion.

I'll certainly grant this, that before the advent of patent law, there was not really an occupation that could be called "inventor." People certainly invented things, because there clearly was innovation, but there weren't people (except for eccentric tinkerers, I suppose) who dedicated themselves purely to invention. It was more like, if your ship was better built than the other person's ship, then you would benefit until they learned how to make something similar.

The question of ultimate causes is an interesting one. I wonder how much was really due to patent protection, and how much to a sort of singularity of a sort. I do know this about the field of medicine: from the early 20th century until about the 1950s, there were tremendous advances made, but since then it has become very hard to find big leaps. Generally today, antihypertensive drugs cannot be compared to one another to find an advantage. They have to be compared to placebo. Now, it may simply be that we've come up against a limit to what is possible through pharmaceutical means. But it could also be that patent protection is hindering innovation.

AGN Fuel
2010-Feb-09, 02:09 AM
I bet the songwriters did not even have it in mind when writing it.

They probably didn't help their cause by having the flautist sitting in a gum tree in the clip as he played the riff...

I agree however - this is nothing more than an opportunistic grab for cash by Larrikin. Up to 60% royalties for an incidental riff? No. :mad:

ilsy74
2010-Feb-09, 02:18 AM
Most businesses are, ultimately, in the business of innovation and creativity. If they don't stand to profit from it, a business is just as unlikely as an individual is to create something new.

In the music industry it is the artist who are responsible for most of the creativity and innovation. Sure the record companies need to do their job of publicizing a good artist, and that is usually at the artist's expense, but it is the artist creating new sounds, genres, melodies, lyrics, cultural references, catch phrases, and so on. Therefore the artists need to be protected in my view. It assists the business as well.

Donnie B.
2010-Feb-09, 02:26 AM
I've been wondering -- is the flute riff part of the published sheet music for the song? It seems more like part of the arrangement rather than the basic composition.

If so, why does the suit name the songwriters themselves?

Jens
2010-Feb-09, 02:35 AM
I've been wondering -- is the flute riff part of the published sheet music for the song? It seems more like part of the arrangement rather than the basic composition.


It's a good question. For example, if somebody does a cover of somebody else's song and copies something during the guitar solo, I can't imagine that the original writers could be sued. I guess in this case it's because it was the original recording of the song by the songwriters, who were in a band with the flute player. So it would be hard for them to argue that they weren't aware of the copying. And it may be in the sheet music, but I don't know.

In any case, I hope they'll run and take cover.

kleindoofy
2010-Feb-09, 02:48 AM
One should check the wording of the verdict.

If the flute riff is the problem and that is not part of the song, then perhaps the verdict only covers revenue from the primary recording and not from the song as such.

Tricky, but it could make a difference in the settlement.

For instance, I may be wrong, but as far as I know, when Micheal Jackson bought the rights to the Beatles songs, he only had the rights to use of the songs after his date of purchase. I.e., the original recordings and all revenue from them still belonged to the Beatles. Thus, Jackson had no cut in the revenue from the releases on CD, the new enhanced remasterings, the Anthology, radio broadcasts of original Beatles recprdings, etc.

I don't trust the press to report such things correctly. Perhaps the Men at Work verdict is more complicated than it has been reported.

Daffy
2010-Feb-09, 02:17 PM
One should check the wording of the verdict.

If the flute riff is the problem and that is not part of the song, then perhaps the verdict only covers revenue from the primary recording and not from the song as such.

Tricky, but it could make a difference in the settlement.

For instance, I may be wrong, but as far as I know, when Micheal Jackson bought the rights to the Beatles songs, he only had the rights to use of the songs after his date of purchase. I.e., the original recordings and all revenue from them still belonged to the Beatles. Thus, Jackson had no cut in the revenue from the releases on CD, the new enhanced remasterings, the Anthology, radio broadcasts of original Beatles recprdings, etc.

I don't trust the press to report such things correctly. Perhaps the Men at Work verdict is more complicated than it has been reported.

I don't know the details of his specific deal, but he bought the publishing, and all royalties connected with that---which includes airplay, commercial use, etc. The publishing rights do not include the mechanicals---sales and rights to the actual records.

The publishing is generally where the huge money is in the music industry. A lot of artists (The Beatles included) made the giant mistake of signing away their publishing, not realizing how much money would be generated. Although as far as I know the Beatles (or their estates) do still get writer's royalties...generally publishing/writer is split 50%. In their case, they mainly lost control of how the songs are used.

SeanF
2010-Feb-09, 03:17 PM
Yes, if you modify your statement from "businesses would not innovate" to "businesses would not innovate as quickly," then we definitely have room for a good discussion.
I would have thought it would go without saying that there would be some innovation, but not nearly as much.


The question of ultimate causes is an interesting one. I wonder how much was really due to patent protection, and how much to a sort of singularity of a sort.
But that just begs the question of to what extent the "singularity" was a result of the increased patent protection laws. Like I said, there's a lot of room for debate. :)


But it could also be that patent protection is hindering innovation.
Pros and cons, give and take. But I think the net effect is a benefit, although I wouldn't doubt that some tweaking to patent protection could result in an even bigger benefit.

But I don't see how providing patent protection to individuals but not to businesses, which seemed to be ilsy74's implication, would help.


In the music industry it is the artist who are responsible for most of the creativity and innovation. Sure the record companies need to do their job of publicizing a good artist, and that is usually at the artist's expense, but it is the artist creating new sounds, genres, melodies, lyrics, cultural references, catch phrases, and so on. Therefore the artists need to be protected in my view. It assists the business as well.
Well, copyright and patent are two different things.

At least since the invention of sound recording, artists could make considerably more money with a publishing company than without one (although I think modern technology - the internet, etc. - is certainly serving to make the publisher more and more irrelevant). So the question is not how much of the creativity is a direct result of the publisher's involvement, but how much of the profit. The artist makes more money and gets more exposure with a publisher than without, so that promotes the creativity, but the artist won't have a publisher unless the publisher can be assured of profits. As I said above, though, some tweaking of the specifics could probably make things even better.