Poor old Men at Work. The ludicrous decision by an Australian court to make them pay up to 60% of the royalties of Down Under to Larrikin Music because of the similarity of band member Greg Ham's flute riff – which plays precisely three times in the song – to a 1934 ditty written for the Aussie Girl Guides, should strike fear into all musicians. If that kind of micro-sampling is to become the subject of court cases the world over, no song that has ever been released is safe. Maybe we should look for the first-ever recorded example of the 1-4-5 harmonic progression, the staple of so much rock and pop through the ages, and argue that every song using it should pay royalties too. That sound you can hear is the hands of music companies and their lawyers being rubbed together at the prospect of making musicians and bands pay back everything they've ever earned because somebody else first came up with the idea of an E-major chord.
Men at Work's "unconscious" (their words) use of a fragment of a tune that had become an Australian folk song by the time they released Down Under in 1983 is in any case a creative slice of Australiana in a song that's all about the land "where the beer does flow and men chunder".
And if Men at Work can be taken to the cleaners for a three-second riff, what would a court have made of Mozart's Requiem? It would never have made it through the copyright laws (if they had existed) if people had been familiar with Handel's Messiah. Have a listen to consecutive movements in the Requiem (the dotted rhythms in the strings in the Introitus, and the first fugue themes of the Kyrie and Part 2 of the Messiah (Surely, He Hath Borne Our Griefs and And With His Stripes, in these admittedly rather contrasted performances from John Eliot Gardiner and Thomas Beecham), and tell me Mozart didn't nick Handel's thematic material.
Of course, Mozart intensified his version and created a new expressive context for Handel's tunes, and his conspicuous borrowing of melodies from the baroque master is an obvious homage to a composer he loved (he made a new orchestration of Messiah just two years before writing the Requiem). It is part of the chain of ongoing, developing creativity that defines every musical tradition. But try telling that to the lawyers.
