EDIT to this post: as you’ll see if you check the comments to this post, someone has informed me that in fact the Girl Scouts/Guides had nothing to do with the suing of Men at Work and in fact it was an Australian publishing company called Larrikin Music that pursued the suit. I apologize to the Gil Guides/Scouts for getting my facts wrong. I got them from a newspaper article. Can’t trust those newspapers…I haven’t changed my entire post to reflect the above fact but I hope you will keep it mind when you read on into what is I hope still a relevant and certainly remains a tragic tale.
Imagine that a Canadian pop band had a huge international hit with a song about life in Canada, one in which a fragment of that old campfire song “Land of the Silver Birch” is prominently featured (though noticeably funkified) in an obviously ironic reference that every listener gets. The band has other hits too, and tours the world making millions of people happy. Things are good for everyone.
Then, some 25 years later, the Girl Scouts of Canada discover that the song “Land of the Silver Birch”, which everyone had thought was a folk song like Old McDonald Had a Farm, was in fact written by a former Girl Scout in the 1930s as part of a Girl Scout musical competition. And when the composer eventually dies the Girl Scouts insist that they own the rights to the song, which the courts eventually do award them. This leads the Girl Scouts to then sue the pop band for copyright infringement and for ‘stealing’ ‘their’ intellectual property by referencing the popular campfire song in that big hit of a few decades ago. After numerous appeals they win this case too, resulting in massive damages being awarded to the Girl Scouts and a legal determination that the flute player who had played the riff in the pop hit is an immoral, unethical thief. As opposed to the popular and much-loved artist everyone thought he was.
The flute player, who had argued vigorously that he had not stolen anything, but had merely been inspired by a familiar folk melody that every 5 year old Canadian knows, is shattered by the decision. “It has destroyed so much of my song,” he tells the newspapers after the court ruling. “It will be the way the song is remembered, and I hate that. I’m terribly disappointed that that’s the way I’m going to be remembered — for copying something.” Having always been an outgoing and fun-loving guy, he becomes more and more isolated. A year or two goes by and one day the flute player’s friends notice that nobody has heard from him recently. They go to his house, break down the door, and find him dead. Suicide appears to be the cause.
Sounds like a fable for the 21st century, and it is, except it is not an imaginary fable but a true-to-life story that happened not in Canada but in Australia. It is the story of Greg Ham, flautist and saxophonist for Men at Work, Australia’s most popular band ever, who was reported dead yesterday.
It is tragic that a man who helped write and perform a string of popular hits for enthusiastic listeners around the world was reduced to begging in court to not be branded a criminal for having – out of all the music he created for so many people – once borrowed a popular folk melody and embedded it in an original song. But in the harsh light of literate law, which is in the midst of slowly cataloging, cross-referencing and copyrighting every sound on the planet, this joyful composition was a breach and a bastard and its authors crooks, stealing musical property in the night and presenting it as theirs.
It feels like a science fiction story to me. Or a Greek tragedy. But sadly it is the world we live in. One in which creativity is defined in black-and-white, by letters in a lawbook, as opposed to allowing the give-and-take of creative inspiration and collaboration to flower for the good of all. Did the Australian Girl Guides really need to pursue Men at Work? Surely not. But they did, and in the process they turned a creative hero into a creative criminal, with a suicidal result.
I used to play some of Greg Ham’s sax and flute parts in a cover band I was in back in the early 80s. I even played that flute melody in the song Land Down Under, which caused so much trouble, making me a thief by association I suppose. But it was another song by Men at Work that I really loved to play. One called Down By The Sea, an achingly beautiful ballad, in which at one point Ham plays this one long low foghorn note on his sax. It was always a thrill to play that note, so deep and evocative. I have Greg Ham to thank for it. And it will be by that song and that note that I will remember him, not for the mud flung at him by the Australian Girl Guides and the legal system. I will remember them for altogether different reasons.