In September of 2007, Australian quiz show Spicks and Specks asked contestants to guess the hidden children’s song in Men at Work’s popular “Down Under”, unknowingly igniting a copyright battle between Men at Work and “Kookaburra (Sits in the Old Gum Tree)” copyright holder, Larrikin Music Publishing.
Larrikin Music Publishing had claimed a flute riff in Men at Work’s “Down Under” contained a two-bar copy of “Kookaburra”, and that the refrain was “an integral part” of Down Under and we are not being recompensed for that song.” Larrikin sought compensation from Men at Work songwriters Colin Hay and Ron Strykert in addition to compensation from Sony BMG, Sony DADC, and EMI Australia.
“Kookaburra” is an Australian nursery rhyme written by music teacher Marion Sinclair in 1934 for a Girl Guides Association of Victoria competition. Following Sinclair’s death in 1988, Larrikin purchased the rights to the song; nine years prior, Men at Work released “Down Under”.
Sony BMG/ EMI Australia originally fought Larrikin’s copyright infringement claims, on the grounds that the Girl Guides were the rightful owners of the copyright, not Larrikin. In 1987, Marion Sinclair signed her rights to “Kookaburra” over to the Libraries Board of South Australia. Larrikin later bought the copyright, though Sony BMG/ EMI Australia argue it was never Sinclair’s copyright to sell. The original competition entry form notes, “All material entered will become the property of the Guides Association”.
Justice Peter Jacobson made a preliminary ruling in July of last year confirming Larrikin as the rightful owners of “Kookaburra”, but did not address the infringement claim until the following February. Larrikin had petitioned for 40-60% of the royalties earned, dating back to 1981.
Earlier this month, Justice Jacobson awarded damages based on violations of the Trade Practices Act of 1974, under Australia Law. By receiving their full share of royalties, Men at Work gave misrepresentations to the Australasian Performing Right Association and the Australasian Mechanical Copyright Owners Society.
In determining the damages, Justice Jacobson considered the difficulty in detecting the similarity between the flute riff in “Down Under” and the two bars in “Kookaburra”, and the overall qualitative and quantitative consideration of Kookaburra’s contribution to “Down Under”, concluding that the flute riff only made up 5.8% of “Down Under”. As such, Larrikin was only entitled to 5% of royalties earned dating back to 2002, as well as future earnings. Justice Jacobson further noted: “In my opinion the figures put forward by Larrikin are over-reaching, excessive and in my view unrealistic.” Total payment is estimated to be under $1 million.
Men at Work contended from the beginning that the flute riff in “Down Under” was unintentional. While the song was originally written by Colin Hay in 1978, the flute riff did not appear until two years later, added by new band member, Greg Ham. Despite intentions or motives, the court maintained that the group was still in violation of copyright. This claim of “unintentional plagiarism” is not new to the courts: George Harrison’s “My Sweet Lord” being an example. As this case has emphasized, whether copying is done knowingly or not, it is still copying in the eyes of the court.
Crumpton Law LLC is a Columbus Small Business Law Firm, with attorney Matthew Crumpton serving as managing member and lead attorney.
