The introductory flute riff of Men at Work’s 1982 “Down Under,” was found to infringe on “Kookaburra Sits In The Old Gum Tree,” copyright by the Federal Court in Sydney.
This was brought to light after it was used for a question on the Australian television pop quiz show Spicks and Specks.
Justice Peter Jacobson ruled that the band should pay back royalties. That is to be decided when the parties meet again February 25.
Marion Sinclair was the writer of “Kookaburra” and died in 1988. The publishing rights to her song are held by Larrikin Music, which sued Down Under’s songwriters, Colin Hay and Ron Strykert, and the song’s distributor, EMI.
Adam Simpson is Larrikin’s lawyer, who said that payment of 40-60 per cent of royalties are a possibility outside court.
Colin Hay explained that Men at Work’s flautist, Greg Ham, had “unconsciously referenced two bars of Kookaburra” during live shows after he joined the band in 1979, but said that the song had been written and performed a year before Ham joined the band.
He said he co-wrote “Down Under,” with Ron Strykert, some time in the winter of 1978. I remember because we had played the song at the Cricketers Arms Hotel in Richmond one Thursday night, and on the way home to Arthur’s Creek, just north of Melbourne, with Ron and my girlfriend, Linda, in the car, I fell asleep at the wheel and ran off the road into a ditch.”
“The song Down Under is my friend. It has always been my friend, ever since it was born. I have been playing it for over 30 years to audiences the world over and will no doubt play it for as long as I am able.”
“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.”
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