Copyright Woes In The Land ‘Down Under’

Presiding in Australia’s Federal Court in Sydney, Judge Peter Jacobson ruled that a flute riff contained part of a melody from the children’s folk tune “Kookabura Sits In The Old Gum Tree,” written in 1934 by schoolteacher Marion Sinclair for a Girl Guides competition. Girl Guides is a scouting organization similar to the Girl Scouts.

At issue were two bars from the flute solo created by band member Greg Ham, who reportedly came up with the solo after “Down Under” was written. Ham admitted in an affidavit that he added the flute line in an effort to give the song an Australian sound, according to the Sydney Morning Herald.

But it was those two bars within the solo that evidently came too close to the “Kookabura” melody for copyright comfort.

The similarities between the songs first came to light during an episode of an Australian music quiz show named after the Bee Gees tune “Spicks & Specks.”  Larrikin Music Publishing, which owns the copyright to “Kookabura” – sued songwriters / Men At Work members Colin Hay and Ron Strykert as well as EMI Music Publishing for back royalties and a share of future profits.

Men At Work performed “Down Under” as early as 1979 and recorded the song in 1981. While contributing the solo, flutist Ham did not write the song.

Larrikin stands to recoup a lot of bucks for their litigation efforts. “Down Under” was an international hit that helped put Men At Work at the top of the charts in the early ‘80s and introduced the world to Vegemite sandwiches. Quantas Airways used if for an advertising campaign and the tune was even played during the closing ceremonies of the Olympic Gams in Sydney.

Regarding yesterday’s decision, songwriter Hay said he’s “had better days,” according to an AAP article in the Herald Sun.

“It is indeed true that Greg Ham 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 said in a statement issued yesterday.

“It was inadvertent, naive, unconscious, and by the time Men At Work recorded the song, it had become unrecognizable.”

Click here to read the Sydney Morning Herald account.

Click here to read the complete AAP article in the Herald Sun.