by Joshua Lobb
Kookaburras have two distinct songs: ‘joint songs’, which are usually only between a breeding pair, and ‘group songs’, which involve all the members of the flock and are performed during sunrise and sunset. Group songs are stronger: they’re usually extended versions of the joint song, but incorporating more laughter, more noise. An ornithologist from Colorado State University recorded the dawn choruses of several flocks of kookaburras in Western Australia. The scientist observed that the song is usually initiated by one bird, oooah (or kooaa or hoo-hoo ha-ha, according to other studies). The rest of the kookaburras follow, several seconds later, one by one, each bird ‘probably contribut[ing] its own series of syllables to the chorus’. The song is performed ‘vigorously’ to create an ‘ear-splitting din’.
Kookaburras are also territorial. The dawn chorus is an assertion of boundaries: those who know the carol, who are part of it, belong to the space. Those who don’t are rejected, aggressively. ‘This is our song,’ the kookaburras cry. It could also be, then, a form of competition between flocks. At the end of the classroom round, the children dispersed and found their families, preening with satisfaction and clambering into their parents’ arms. Each father and mother whispered into their child’s ear, secretly and not-so-secretly, ‘You were the best, my darling.’
At the end of the Federal Court appeal, it’s confirmed that ‘Down Under’ did reproduce a substantial part of ‘Kookaburra’, round or no round.
‘Listen to this,’ my wife says. I don’t know where she’s wandered off to now: the web is a vast universe. ‘Warblish. What a word. Can you believe it?’
‘Warblish,’ she tells me, ‘is a word used to describe a specific way of articulating bird calls.’ It’s different from the Piedmont High chirps and whistles; different, too, from an onomatopoeic attempt at representation—‘cock-a-doodle-doo’; ‘boo-book’; ‘hoo-hoo ha-ha’. ‘It’s when,’ she says, pausing to sip her coffee, ‘you use words, you know, actual human words, to make the sounds. ‘Whip poor Will. Who cooks for you?’ She reads out a compilation of warblish calls listed on the website. The indigo bunting: ‘Fire, fire, where, where, here, here’; The song sparrow: ‘Pres-pres-pres-pres-by-ter-ri-an’; the white-throated sparrow: ‘Poor Sam Peabody, Peabody, Peabody.’ She’s trying to incorporate our daughter into the conversation, but the girl is still swinging her legs off the edge of the veranda, tapping her fingernails on the boards.
‘They don’t have the one my granddad used to say. There’s a bird up in Queensland that he swears calls out: “Shit-a-brick!”’
‘Mummy!’ my daughter squeals.
‘Pardon my warblish,’ my wife says, laughing.
And then the Kookaburra strikes.
According to Hannah Sarvasy, a researcher in linguistics from the Australian National University, warblish can perform a function that goes beyond simple translation into human language. It can also transform. It turns the birdsongs into time capsules, little stories about the communities they come from: American frontier life (‘kettle, ettle, ettle’); Australian bush larrikinism (‘Shit-a-brick!’). They can explain a cultural practice or generate mythology. A Brazilian story tells of a group of children who go missing in the jungle, fleeing after their mother berated them. According to the legend, the children were turned into the dusty-legged guan, who calls, ‘Our mother scolded us!’ There’s a similar tale from the Kaluli people in Papua New Guinea. There, some children wander off and are killed by enemies. Their cries are taken up by the bolo bird, who sings the melancholy ‘dowo’, which means ‘father, mother’. We hear the birds, but we’re also listening to something else. As Andrew Ford might say, ‘the notes aren’t different, but we hear them differently’.
In his closing statements in the appeal, Justice Emmett muses that:
The better view of the taking of the melody from Kookaburra is not that the melody was taken … in order to save effort on the part of the composer of Down Under, by appropriating the results of Ms Sinclair’s efforts. Rather, the quotation or reproduction of the melody of Kookaburra appears by way of tribute to the iconicity of Kookaburra, and as one of a number of references made in Down Under to Australian icons.
If, as I have concluded, the relevant versions of Down Under involve an infringement of copyright … then some of the underlying concepts of modern copyright may require rethinking.
In 2013, the Australian Law Reform Commission compiled a report, Copyright and the Digital Economy, which outlined some questions and problems inherent in the 1968 Copyright Act. The commission concluded that: ‘It is clear that copyright law directly affects a broad range of cultural activity, often impeding access to material for no good policy reason.’ It proposed a new way of considering copyright infringement, based on the notion of ‘fair use’, saying:
Fair use promotes what have been called ‘transformative’ uses—using copyright material for a different purpose than the use for which the material was created. This is a powerful and flexible feature of fair use. It can allow the unlicensed use of copyright material for such purposes as criticism and review, parody and satire, reporting the news and quotation. Many of these uses not only have public benefits, but they generally do not harm rights holders’ markets, and sometimes even enlarge them.
Supreme Court Justice Sandra Day O’Connor, citing the US Constitution, says:
The primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.
In his article ‘Jurisprudence as Musicology: Suing in the Land Down Under’, Chris May cites the work of Lydia Goehr, who speaks of an ‘originality myth’ when it comes to an author’s production of a work. Jonathan Lethem, in his essay ‘The Ecstasy of Influence’, cites O’Connor, and is later cited by May. He says, ‘Any text that has infiltrated the common mind … inexorably joins the language of culture. A map-turned-to-landscape, it has moved to a place beyond enclosure or control.’ Amplifying this thought, Jim Samson, also cited by May, celebrates the way ‘a musical work threads its way through many different social and cultural formations, attaching itself to them in different ways, adapting its own semblance and in the process changing theirs’. They cite, I cite, we all cite, but differently.
An hour ago no conversation had ever linked copyright and bird calls, warblish and the ‘tricky and rather amusing business’ of composing a round. An hour ago, I unwrapped five rashers of bacon from a sheet of butcher’s paper and flicked them into a spitting frypan. The strips danced in the oil, turning from pink to slimy brown. Then they slid onto plates, next to toast and baked beans and fried eggs. They were carried out into the sunlight. A girl, humming to herself, teetered her plate on the edge of the deck. Halfway through the meal—egg smeared on her face and T-shirt, crumbs of toast licked up by the dog—she looked down at her plate at the strip of bacon and saw something else: a country road wending its way between two ridges of toast crust. A stray baked bean became a car. Then the girl became distracted by a fly or a noise or the call of her mother and the objects on the plate became scraps, leftovers to be swept into the bin in the kitchen. Or, in a moment, to become food again, this time for another animal.
The kookaburra, round-chested and alert, will spy it from his vantage point on the branch of the old gum tree. He’ll scissor through the air—a streak of azure in his grey-brown feathers—and back up to the branch. In the kookaburra’s mind the bacon is a worm, maybe. He whips it in the air, clasping one end sharply in his beak. The bacon/worm slaps against the smooth bark of the eucalypt before it’s tossed up and gulped by the kookaburra.
Multiple uses; multiple possibilities.
Of course, I’m not thinking about who the bacon was before it sizzled into the frying pan. I’ll save that discussion for another day.
Some birds only have a single song: a finite us
e; a narrow repetition. These birds have what some ornithologists call ‘a preference for predictability’ or an ‘entrainment to rhythms’—or, as I first read it, ‘entrapment to rhythms’. It never transforms into something else, it’s never improvised around or altered. It’s sometimes easier to follow one pattern, one train of thought. In human communication, there’s a kind of repetition called ‘priming’, which is a tendency to use a phrase or word that has already come up in the conversation. ‘Can you believe it?’ ‘Listen to this.’ It’s a way of making us feel safe, like we’re part of a group. We learn how to speak from the people around us. Young kookaburras learn to laugh by listening to the older members of the flock. Scientists have observed apparently explicit ‘laughing lessons’ between parent and fledgling. The adult sings the beginning of a phrase and the child appears to imitate: haltingly, ineptly. The ritual is repeated over the course of some weeks until, according to one scientist, ‘the juvenile has attained mastery of the laugh’.
Consider this moment: years before a family eats breakfast on the veranda on a Saturday morning, a boy and a man sit opposite each other across the expanse of a marble kitchen table. The man says, ‘She’s having a good day today.’ The boy says, ‘She’s sleeping.’ The father sings the refrain, ‘She always looks forward to seeing you.’ Learned rituals; entrapments to rhythms.
And there’s another song the boy sings: another set of repetitions, another kind of language. In the school terms and holidays of his childhood, he gathers together certain patterns of behaviour. He can’t walk on certain colours on a carpet. He has to eat the food on his plate in a certain order: peas, then sausages, then bread. On his way to school he has to cross the road at particular spots and he has to be careful to jump over the slippery cement kerb. He has a record called Hitwave ’81 that was given to him for his birthday. The label in the centre of the record has a cartoony depiction of a tidal wave which matches the bubble-writing font of the album title. If he’s careful, the boy is allowed to put on the record in the afternoon when he comes home from school. He watches the label spinning round and round, the tidal wave transforming into a yin-and-yang spiral. He has to play it almost inaudibly so as not to disturb the other inhabitants of the house. He can’t play the songs in the track order. The correct order is: ‘This Ol’ House’ then ‘Stars on ’45’ then ‘Down Under’. He lifts the needle and has to ease it down precisely into the groove between songs. It’s imperative that he doesn’t pick up the end of the previous song or jump to the mid-phrase of the next: if he catches the fade-out of Shakin’ Stevens’ jangly voice or hits the flute riff mid-phrase he knows something terrible will happen. He doesn’t know what will happen if he misses the moment; he knows exactly what will happen.
And at night, in the dark, he looks up at an empty expanse of ceiling. He has his arms straight against the sides of his torso. His fingertips strum his thighs. On the left: tap tap tap tap; on the right: tap tap tap tap. Repeat. There are words to accompany the tapping. Tap tap tap tap. Tap tap tap tap.
‘That’s your song,’ the lyrebird says. ‘No one can ever take it away from you.’
And there’s another moment: North Melbourne, mid-morning. A corner house, wide colonial awning reaching over the footpath, painted grey. No one’s come through the front door for a few days now. Neighbours have noticed that the cat is mewing from the inside. Friends have called, but the phone keeps going to voicemail. Two men are knocking on the door. Tap tap tap tap. Tap tap tap tap. As though it’s a memory of a song, or a reference to a song. Greg Ham says, ‘I’m terribly disappointed that that’s the way I’m going to be remembered—for copying something.’
The kookaburra swoops. For a moment, the three of us are snap-frozen, wondering if it really happened. My wife and I flick our attention to our daughter. Sharp-backed, wide-eyed, she’s on the cusp, trying to decide whether to wail in outrage or shriek with glee. To our great relief, her face transforms into ecstasy.
‘Can you believe it?’ she squeals.
She jumps down into the garden. The kookaburra has flown back to the eucalypt. My daughter stands on tippy-toes and twists her neck, but she can’t see the bird from where she is. She jumps forward. It’s curious: it’s only a few steps directly to the tree, but my daughter is taking a peculiar route. She hops to the left; she takes a large leap to the right. She’s careful to aim towards a precise spot, as if she’s trying to land on a particular space between the blades of grass.
Tap tap tap tap, I think. I don’t want to think. The adult sings the phrase and the child imitates.
‘What are you doing?’ I call.
‘Well, I can’t step there, Daddy.’
‘Why not?’
‘The dog did a poo there.’
I laugh. My daughter skips over to the tree. I look up into the branches of the eucalypt. The kookaburra is there, flinging the bit of bacon around and slapping it against the trunk. But there’s a young man there, too, face beaming, playing a riff on a flute. He’s performing to a koala puppet; its tufty hair looks like Michael Leunig’s. Michael Leunig says:
[It’s] a quotation or a tribute or a homage if you like, where you quote from the culture you grew up on, is entirely natural and spontaneous and proper. It reinforces and celebrates culture. It’s culture making. And I grew up on that song. I mean at school we sang that song day and night. It just goes into you—it belonged to us all.
And the kookaburra opens his mottle-brown wings and flies away.
Further to Fly
What bird, perched on the high-leaved branches of oak or pine, will come to mourn with me …? With cries of woe, I lament before it comes the piteous lonely life, that I shall live for the rest of time, in streaming tears.
Euripides, Phoenissae
This isn’t a story about what happened to him at the office. There are stories he could tell you about that: the way he plummets from one urgent demand to another; the lumpen dread he feels when confronted with a furious fluster of emails. This is not the story of the loneliness that comes upon him halfway through another pointless meeting. There is a specific story he needs to tell about his workplace, but he’ll save that story for another time.
This is a story about what happened on the way home.
He was driving fast, trying not to think about work and listening to a Paul Simon CD, loud. The music probably wasn’t meant to be played loud—it was soulful, mournful—but he was comforted by the halo of noise around him. It was the end of a long week. The car was a station wagon, Bunnings-green, with silver trimmings. A Subaru Outback. He’d laughed with his wife that the closest they got to the outback was the Marsden Park Ikea. But it was useful for carting around all the family’s stuff on the weekends, and it did have a bit of grunt when he needed it.
He was following the usual line home. The highway ran parallel to the railway tracks: dual lanes mainly, and flyovers that bypassed traffic lights and local shops. There was a segment, though, where the road narrowed and passed a school. On bad days, you could be stuck there forever. Cars crushed up against each other and the air would thicken with exhaust fumes and frustration. Today was a bad day. Fortunately, he had an escape route. Just before the lanes merged, he indicated left and took a sneaky backstreet. Even though he’d taken this road before he always thought of it as uncharted territory, like a secret tunnel under the city. It was houses for a few blocks—weatherboard and brick veneer—then the road plunged through a nature reserve. Quite literally plunged: a steep drop into a tight gully, thick with eucalypts. A diversion of green and grey between suburbs. He never needed to put his foot down there. He’d let the car teeter over the edge and slide down the strip of asphalt. He enjoyed the sensation of leaving his stomach behind at the top of the hill.
The station wagon bounced as it hit the bottom of the hill. Paul Simon sang on, unperturbed, yearning for a river and a lost lover. It was dark in the valley, but he autopiloted the sudden swerve to the right. The tar crumbled at the edges of the road; he
kept close to the centre line. He didn’t take his foot off the accelerator. A cloud of dust rasped behind him. The trees hung low and dense, with an occasional break in the canopy letting in sharp strips of sunlight. Not quite the outback, he thought, but almost. On days when he didn’t feel like hooning he’d imagine stopping in the gully: getting out of the car and resting his palm on the bark of a eucalypt, listening to the call-and-response of the whipbirds. The bark would be cold, like cement.
The road took a series of long bends up the next hill. He skidded around a crumbly corner, letting the bands of light flow over the windshield. One more turn to reach the crest of the hill. As it came over the crest, the car—and driver—looked directly into the setting sun.
He blinked, momentarily mesmerised by the flecks of dust in the air. They were hovering, illuminated. Out-of-focus creatures from another world. He wanted to reach through the windshield and cup them in his hands. And then he was aware of the real creatures in the air, scraping too low and coming directly towards the windshield. He couldn’t work out what they were: their wings were flapping too fast, they were a dazzle of red and blue. He only had a microsecond to grab the steering wheel and listen to the shrieking whir as the car spun to the side of the road. He heard something else, too, even over the hissing wheels and Paul Simon’s sorrowful tone. Or maybe he just felt it. A sudden thump against the front of the car, like a lump of lead slamming into the bumper.
The wheels had stopped whirring. Paul Simon had been cut off mid-lyric. He sat in the driver’s seat, dazed. He rubbed the side of his neck where the seatbelt had slapped his skin. The haze of dust settled around the car.
