LimeWire Music Blog

A judge in Sydney has ruled that the flute part in Australian band Men At Work’s 1982 number-one hit “Down Under” was plagiarized. The court ruled that the riff was stolen from “Kookaburra Sits In The Old Gum Tree,” a folk tune written in 1935. Marion Sinclair, a teacher who wrote the song for a Girl Guide Jamboree, has since died, but in 1990 the rights to the song were bought by music company Larrikin. The company’s attorney, Adam Simpson, proclaimed the verdict as “a big win for the underdog.” What does this all mean? Well, the band will have to fork over years of earnings as a result of the decision.

Men At Work’s singer/guitarist Colin Hay isn’t taking the decision lying down and issued a statement about the verdict. Here is an excerpt:

The Federal Court ruling of Justice Jacobson regarding Down Under, and Marion Sinclair’s song Kookaburra Sits In The Old Gum Tree, came down today. I am as we speak, wading through the 60 page document of his ruling. Clearly, I’ve had better days.

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 litigated against EMI Music Publishing, who controls the copyright of Down Under, and Ron Strykert and myself, the writers of Down Under. He alleged that we appropriated a “substantial” part of Kookaburra, and in so doing, infringed upon that copyright, and incorporated it into the flute line of Men At Work’s recording of Down Under. 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. What’s interesting to me, is that Mr Lurie is making a claim to share in the copyright of a song, namely Down Under, which was created and existed for at least a year before Men At Work recorded it. I stand by my claim that the two appropriated bars of Kookaburra were always part of the Men At Work “arrangement”, of the already existing work and not the “composition”.

Hays added:

I believe what has won today is opportunistic greed, and what has suffered, is creative musical endeavor. This outcome will have no real impact upon the relationship that I have with our song Down Under, for we are connected forever. 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, because I was there, Norm Lurie was not, and neither was Justice Jacobson. 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.

Hays’ full statement is available here.