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Australian hit Down Under 'ripped off' children's song
Thu 4th Feb 10 - 9:47
It is one of the most recognisable flute riffs in one of Australia's most famous songs, but it seems the introductory hook to Men at Work's classic hit Down Under was not original.
It was stolen from another famous Australian song – the children's nursery rhyme Kookaburra Sits In The Old Gum Tree, penned by a Melbourne school teacher, Marion Sinclair, for a Girl Guide competition in the 1930s.
A judge in Sydney has found that the famous riff from the de facto Australian anthem was unmistakably the same as the children's tune, ending a seven-month copyright battle between the pub classic and the schoolyard favourite.
"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," Justice Peter Jacobson told the federal court today.
Marion Sinclair died in 1988, an the Kookaburra publishing rights are held by Larrikin. Adam Simpson, the company's lawyer, said that EMI and the Down Under songwriters may be forced to hand over as much as 60 per cent of their earnings from the international hit record over the past six years, which could cost the songwriters millions of dollars in royalties.
"It's a big win for the underdog," Mr Simpson said outside the court today.
When asked how much Larrikin would be looking for in compensation, he replied: "Obviously, the more the better but it depends — anything from what we've claimed, which is between 40 and 60, and what they've suggested which is considerably less."
The two parties will meet again on February 25 to discuss the findings and begin discussions about costs.
Men at Work have sold more than 30 million albums worldwide, thanks in part to the song Down Under, which was, released in 1981 and went on to become a chart-topping hit in Australia, Britain and the US. It helped to garner Men at Work a Grammy award in 1983 for best new artist and is consistently named as one of the best Australian songs of all time because of its references to iconic Australian things such as a Vegemite sandwich, combie vans and beer and, of course, "chunder".
Last October the case heard that the Men at Work flautist Greg Ham conceded he may have "subconsciously referenced" the melody from the Kookaburra song while he was researching "quintessentially Australian icons".
While the similarities had been long rumoured about among music aficionados, the issue came to national prominence when it was used as the subject of a question on the Australian music quiz show Spicks and Specks (which has a similar format to Britain's Never Mind the Buzzcocks).
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Phil Hitchen, Associate Solicitor at Ralli who specializes in Corporate and Intellectual Property law on 5-Feb-2010 09:51:49
If you are a successful songwriter who had a popular chart topping hit decades ago and together with the band and the recording company have had millions (AUS$) are still making considerable money from earnings it might be a shock to now be the subject of a copyright infringement action particularly when it relates to a “well known” childrens song from the 1930’s. For the songwriters of “Down Under”, the former band members of “Men at Work” and recording company EMI this is exactly what has happened.
I read the initial news reports some time ago and confess I didn’t take the matter too seriously. “Down Under” was a hit back in the 1980’s. It was quirky and had a surreal video. I liked it and bought it as did many others and it still remains very popular. I had never heard of the childrens song and to me it does not sound similar to the flute element-unless perhaps you take out the song lyrics and speed it up? Unfortunately for the writers of “Down Under” and EMI it is now deadly serious with latest news reports of a judgment of infringement and the likelihood of having to pay up to 60% of earnings to the owner of the infringed material.
It’s a cautionary tale that we have heard before of the importance of using original copyright material that you own or have bought or licenced. For instance the allegations concerning hits by The Verve and Vanilla Ice and recently “Whiter Shade of Pale”.
So if you are writing music for a song and it resembles in part the theme tune for “Mr Ben” or The Magic Roundabout” beware!.
Phil Hitchen is an Associate Solicitor at Ralli who specializes in Corporate and Intellectual Property law.