This week Australian Federal Court judge Peter Jacobson ruled that the flute passage in Men At Work's popular new wave ode to life in the lower hemisphere bears a distinctive resemblance to "Kookaburra Sits In The Old Gum Tree," an Aussie children's folk tune written 75 years ago by schoolteacher teacher Marion Sinclair. "I have come to the view that the flute riff in 'Down Under' in the 1979 recording and 1981 recording infringes on the copyright of 'Kookaburra,' because it replicates in material form a substantial part of Ms. Sinclair's 1935 work," stated the judge.
Music company Larrikin, which acquired the rights to "Kookaburra" nearly two decades ago, filed the suit after hearing a snippet of "Down Under" played on an Australian quiz show last year. And now, after this week's ruling, Larrikin stands to collect a substantial amount of royalties (somewhere between 40 and 60 percent) from Men At Work, "Down Under" songwriters Colin Hay and Ron Strykert, and record labels Sony BMG and EMI.
"It's a big win for the underdog," Larrikin's lawyer Adam Simpson told Australian reporters--although, sadly, Marion Sinclair will not be seeing any of that money (she passed away long ago), and neither will any of her heirs, since the song's rights were sold to Larrikin in 1990 after Sinclair's death.
After the surprising ruling, Men At Work singer and songwriter Colin Hay published a lengthy and very emotional statement in Australia's Herald Sun. "The copyright of 'Kookaburra' is owned and controlled by Larrikin Music Publishing, more specifically by a man named Norm Lurie. Larrikin Music Publishing is owned by a multi-national corporation called Music Sales. I only mention this as Mr. Lurie is always banging on about how he's the underdog, the little guy. Yet, he is part of a multi-national corporation just like EMI Music Publishing. It's all about money, make no mistake," he wrote.
You know, Colin has a point.
"It is indeed true, that Greg Ham (not a writer of the song) unconsciously referenced two bars of 'Kookaburra' on the flute, during live shows after he joined the band in 1979, and it did end up in the Men At Work recording," Hay conceded. "When Men At Work released the song 'Down Under' through CBS Records (now Sony Music), in 1982, it became extremely successful. It was, and continues to be, played literally millions of times all over the world, and it is no surprise that in over 20 years, no one noticed the reference to 'Kookaburra.'"
Well, Colin certainly has a point, there, too.
"Mr. Lurie claims to care only about protecting the copyright of Marion Sinclair, who sadly has passed away. I don't believe him. It may well be noted, that Marion Sinclair herself never made any claim that we had appropriated any part of her song 'Kookaburra,' and she wrote it, and was most definitely alive, when Men At Work's version of 'Down Under' was a big hit. Apparently she didn't notice either."
Again, Colin makes a good point.
Colin Hay makes many other good points, actually; his full statement can be read at http://www.heraldsun.com.au/news/men-at-works-colin-hays-statement-on-court-battle-over-down-under-and-kookaburra-in-full/story-e6frf7jo-1225826917098.
So, do you think the Australian court's ruling was fair? Are you Team Men At Work or Team Larrikin? Who's the real underdog here? Compare and contrast the two songs below:
"This outcome will have no real impact upon the relationship that I have with our song 'Down Under,' for we are connected forever...'Down Under' lives in my heart, and may perhaps live in yours. I claim it, and will continue to play it, for as long as you want to hear it." - Colin Hay
- Colin Hay