A judge has ruled that the flute riff in Men at Work’s Australian anthem “Down Under” plagiarized a popular nursery rhyme, called “Kookaburra Sits in the Old Gum Tree”, which was written in 1932. It was written by Australian teacher Marion Sinclair for a Girl Guides competition.
Sinclair died in 1988. In 1990, an Australian publishing group called Larrikin Publishing bought the copyright to the song. “Down Under” was composed and performed by Men at Work founding member Colin Hay in 1978. Greg Ham added the flute riff after he joined the band in mid-1979.
According to court documents, Ham added the riff to the song to inject some “Australian flavor.” He admitted he had heard the song while growing up in the country in the late 1950s and was “pretty sure” that Kookaburra was in his school’s song book.
Judge Jacobsen found that Ham deliberately included the bars from Kookaburra into the flute line, but accepted that Colin Hay didn’t realize it was from the nursery rhyme until early in the last decade.
The judge ordered both sides to enter mediation on royalty payments and reappear in court on February 25 to discuss whether Larrikin should receive compensation from Hay and Strykert.