For a generation of pop music fans in the 1980s, it was the bubbly anthem that provided a lesson about the Australian vegetable-based brown sandwich spread vegemite. For Aussie band [artist id="12358"]Men at Work[/artist], it was the song that put them on the international map, making them the only band from “Down Under” to ever have a #1 album, Business as Usual, and single at the same time in the U.S. and earning them a 1983 Grammy for Best New Artist.
But for the publishing company Larrikin Music, the signature flute solo in the song “Down Under” sounded a bit too much like the 70-plus-year-old children’s campfire song “Kookaburra Sits in the Old Gum Tree.” According to The Associated Press, that similarity to the song written by Australian teacher Marion Sinclair for a Girl Guides (similar to the Girl Scouts) competition in 1932 was deemed copyright infringement by an Australian court.
The court ruled on Thursday (February 4) that Men at Work copied the children’s song in “Down Under” and must pay the copyright owner years of royalties. Sinclair died in 1988, but her publishing company, Larrikin, owns the copyright for the ode to the native Australian bird and filed a copyright-infringement suit last year against the band.
“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 in his decision.
Larrikin Music’s lawyer Adam Simpson said outside the courtroom that the company could seek up to 60 percent of the royalties “Down Under” has earned since its release, an amount that could total millions considering the album it came from sold more than 20 million copies.
The judge ordered both sides back into court on February 25 to discuss what compensation Larrikin should receive from “Down Under” songwriters Colin Hay and Ron Strykert and the group’s record companies, BMG Music Entertainment and EMI Songs Australia.