Down Under breach of copyright

The band “Men at Work” lost their final court bid to prove they did not steal the flute riff from the childrens song Kookaburra Sits in the Old Gum Tree which apparently appears in their 1980’s hit “Down Under”.

The High Court of Australia rejected their bid to appeal a federal court ruling that the group had copied the melody from the song Kookaburra Sits in the Old Gum Tree for the flute parts of the song.

Publishing company Larrikin Music , which now holds the copyright for Kookaburra,- filed a copyright lawsuit in 2009. The song was written more than 70 years ago by Australian teacher Marion Sinclair who died in 1988.

Last year, Federal Court Justice Peter Jacobson ruled that the Down Under flute riff replicated a substantial part of her song. The judge later ordered Men at Work’s recording company, EMI Songs Australia, and Down Under songwriters Colin Hay and Ron Strykert to pay five per cent of royalties earned from the song since 2002 and from its future earnings.

Larrikin Music wasn’t able to seek royalties earned before 2002 because of a statute of limitations.

Lawyers for Men at Work’s recording companies maintained the band hadn’t copied anything, and vowed to fight the ruling. Now the decision from the High Court ends the band’s chance to appeal. I have to say as a former musician, I doubt very much that the writers of the song deliberately or consciously copied that riff to be included in what is technically called a “ska” song. If this is a precedent, there must be many an old bluesman who would have a great chance of recovering royalties as their music has been plagiarised for years. I am sure Marion Sinclair would have been flattered if she thought that riff had been used. It is another ridiculous decision from the Courts.

In 1983, the song “Down Under” and the album it was on, “Business As Usual”, was a number one hit on the Australian, American and British charts. They also won the Grammy Award for Best New Artist that year. The song Down Under was the theme tune to the Americas Cup Australia 2 successful win and is often heard at many National team Sporting events. It is a crowd favourite.

Do you think they plagiarised?

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