In February, 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.
The band has to pay 5 percent of the song’s royalties, which was a lot less than the 60 percent that Larrikin Publishing was looking for.
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.
On Tuesday, Jacobson ordered Men at Work’s recording company, EMI Songs Australia, and “Down Under” songwriters Colin Hay and Ron Strykert, to pay 5 percent of royalties earned from the song since 2002 and from its future earnings. A statute of limitations restricted Larrikin from seeking royalties earned before 2002.
The court didn’t specify what the 5 percent penalty translates to in dollars.
“I consider the figures put forward by Larrikin to be excessive, overreaching and unrealistic,” Jacobson wrote in his judgment.
Mark Bamford, a lawyer for EMI, said the company plans to continue with its appeal of the February ruling.
“The ruling today on quantum is a good result in light of Larrikin’s ‘excessive, overreaching and unrealistic’ claim” for a higher cut of the profits, Bamford said in a statement. “EMI Songs will now focus on its appeal against the broader decision.”
Adam Simpson, Larrikin Music’s lawyer, said the company had no comment on the ruling, due to the pending appeal. Hay and Strykert were not in court for the decision and couldn’t immediately be reached.
“Down Under” and the album it was on, “Business As Usual,” topped the Australian, American and British charts in early 1983. The song remains an unofficial anthem for Australia and was ranked fourth in a 2001 music industry survey of the best Australian songs. Men at Work won the 1983 Grammy Award for Best New Artist.
Reference: The Christian Science Monitor