In what must seem like a bad April Fools joke, Australian band Men at Work lost their appeal yesterday against a ruling which found their 1983 hit single Down Under had two identical (read copied) bars from the tune Kookaburra Sits in the Old Gum Tree. (You heard Down Under in the closing ceremonies of the 2000 Olympics in Sydney.)
The band’s defense was an odd one, at once in opposition to itself. Marion Sinclair wrote Kookaburra in 1934. It’s been a popular folk song of Australian children for a long time. Colin Hay, who co-wrote the Men at Work track in 1978 (with Ron Strykert) called any similarity “inadvertent, naive, unconscious...” However, record label EMI argued the songwriters were not guilty of plagiarism “because the inclusion of two bars from the tune was a tribute.” That admission is the truth, and it was costly.
It appears the way it went down was this: Down Under was written in 1978 (before creation of Men at Work, incidentally). In 1979, at a live concert, a new band member reportedly added a complimentary flute riff, recognizably from the popular folk tune; it was a popular inclusion, and stayed in the live concerts; then, the recording in 1983 INCLUDED that riff, without permission
It appears it was okay with Sinclair, as there was no controversy while she was alive.
Things started to go south for the Men at Work when the rights to the song were purchased by London house Larrikin Music in 1990, following Sinclair’s death in 1988. Did they know what they were buying? Probably not, at least as suggested by the timeline. Nonetheless, now the band (with EMI and SONY BMG) must pay 5% of money earned from the song since 2002, as well as future royalties to Larrikin.