'80s hit Down Under copies kids' song: court

Australian band Men at Work copied a well-known children's campfire song for the flute melody in its 1980s hit Down Under and owes the owner years of royalties, a court ruled Thursday.
Australian pop group Men At Work, seen here in 1983, included (from left) Colin Hay, Ron Strykert, John Rees, Jerry Speiser and Greg Ham. ((Dave Hogan/Hulton Archive/Getty Images). )

Australian band Men at Work copied a well-known children's campfire song for the flute melody in its 1980s hit Down Under and owes the owner years of royalties, a court ruled Thursday.

Kookaburra Sits in the Old Gum Tree was written more than 70 years ago by Australian teacher Marion Sinclair for a Girl Guides competition, and the song has been a favourite around campfires from New Zealand to Canada.

Colin Hay, Men At Work's lead singer, has admitted that Down Under does include two bars referenced from Kookaburra. However, it wasn't in the original version he and Ron Strykert composed and performed starting in 1978, but was added later, during live shows and the subsequent 1982 album recording, by band member Greg Ham.

"[Down Under] 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. There are reasons for this. It was inadvertent, naive, unconscious, and by the time Men At Work recorded the song, it had become unrecognizable," Hay said in a statement.

"When I co-wrote Down Under back in 1978, I appropriated nothing from anyone else's song. There was no Men At Work, there was no flute, yet the song existed. That's the truth of it." 

The teacher died in 1988, and publishing company Larrikin Music owns the copyright to her song about the native Australian bird. Larrikin filed the copyright lawsuit last year.

"I have come to the view that the flute riff in Down Under … infringes on the copyright of Kookaburra because it replicates in material form a substantial part of Ms. Sinclair's 1935 work," Federal Court Justice Peter Jacobson said.

He ordered the parties back in court Feb. 25 to discuss the compensation Larrikin should receive from songwriters Colin Hay and Ron Strykert and Men at Work's record companies Sony BMG Music Entertainment and EMI Songs Australia.

Adam Simpson, Larrikin Music's lawyer, said outside court the company might seek up to 60 per cent of the royalties Down Under earned since its release — an amount that could total millions. 

The songwriters and their recording companies did not immediately comment.

Down Under and the album 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.