Men at Work lose in court Down Under

news.com.au ^ | 8th October 2011 | Kristen Gelineau

[naturalman1975]

AUSTRALIAN band Men at Work lost their final court bid to prove they did not steal the distinctive flute riff of their 1980s hit Down Under from a children's campfire song.

The High Court of Australia on Friday denied the band's bid to appeal a federal court judge's earlier ruling that the group had copied the signature flute melody from the song Kookaburra Sits in the Old Gum Tree.

Kookaburra was written more than 70 years ago by Australian teacher Marion Sinclair for a Girl Guides competition. Sinclair died in 1988, but publishing company Larrikin Music - which now holds the copyright for Kookaburra - filed a copyright lawsuit in 2009.

Last year, Federal Court Justice Peter Jacobson ruled that the Down Under flute riff replicated a substantial part of Sinclair's song. The judge later ordered Men at Work's recording company, EMI Songs Australia, and Down Under songwriters Colin Hay and Ron Strykert to pay five per cent of royalties earned from the song since 2002 and from its future earnings.

[naturalman1975]

It's a pity the money isn't to go to the Girl Guides (the female equivalent in Australia of the Boy Scouts - although the Scouts are now just the Scouts as they take girls as well, unfortunately). There was a real legal case that they should hold the Copyright rather than Larrikin Music, but they couldn't afford to pursue it.

[mkmensinger]

Neb At Work: Out to Lunch

[mkmensinger]

Men At Work: Out to Lunch

[WOBBLY BOB]

I guess the court didn’t speaka their language.

[Rennes Templar]

Ron Strykert, rhythm guitarist, is a good friend of mine. He said they did not copy the flute riff from “Kookoobura”, but admits it is similar, but only coincidental.

[rarestia]

Kookaburra sits in the old gum tree
Merry merry king of the bush is he!
Laugh! Kookburra, laugh! Kookaburra!
How gay his life must be!

[Leroy S. Mort]

Oz: Where women glow and lawyers plunder .. 70 years later.

[naturalman1975]

I simply cannot believe that. Especially as the video clip has the flautist sitting in a gum tree as he plays it (”Kookaburra sits in an old gum tree.”)

I do think there’s a real question as to whether or not the presence of the riff in the song is significant enough to comprise plagiarism - it’s not a major feature of the song at all - but it’s very easy to hear at that point.

[naturalman1975]

I simply cannot believe that. Especially as the video clip has the flautist sitting in a gum tree as he plays it (”Kookaburra sits in an old gum tree.”)

I do think there’s a real question as to whether or not the presence of the riff in the song is significant enough to comprise plagiarism - it’s not a major feature of the song at all - but it’s very easy to hear at that point.

[Dick Holmes]

Since the verdict, Colin Hay has continued to insist that any plagiarism was wholly unintentional. He says that when the song was originally written in 1978, it did not have the musical passage in question, and that it was not until two years later, during a jam rehearsal session, that flautist Greg Ham improvised the riff, perhaps subconsciously recalling "Kookaburra". Hay has also added that Ham and the other members of the band were under the influence of marijuana during that particular rehearsal.[wikipedia]

I am shocked, shocked that marijuana was used before a jam session!

What's really shocking is that it's not public domain by now.

[Buckeye McFrog]

Too bad they aren’t black and their music isn’t rap or hip hop.

Cause if it was they’d be free to rip-off any riff from any artist in recorded history. And if they said ‘boo’ about it they’d be RAAAACISTS!!!!

[Yardstick]

Neb

Has a nice ring to it. Would be a good name for a boy.

[kidd]

I guess the court didn’t speaka their language.

Nope.
They just smiled and ruled it a plagiar-ite sandwich

[the invisib1e hand]

Ron Strykert, rhythm guitarist, is a good friend of mine. He said they did not copy the flute riff from “Kookoobura”, but admits it is similar, but only coincidental.

Very hard to prove if a riff is stolen, unless it's perfectly obvious (and even then the evidence is circumstancial).

The one that comes to mind for me is Lionel Ritchie's "Mighty Glad you Stayed" (or whatever the hell it was called) having Clapton's "Wondeful Tonight" riff, albeit with a little effect and in a different key.

[Billthedrill]

If copping phrases from popular tunes is now actionable there are a whole lot of jazz musicians in trouble. BTT.

[the invisib1e hand]

Cause if it was they’d be free to rip-off any riff from any artist in recorded history. And if they said ‘boo’ about it they’d be RAAAACISTS!!!!

Isn't that a fact. Quite over hearing that, myself.

Try writing something original that doesn't contain a bunch of foul and violent language.

[Mr Ramsbotham]

Ron Strykert, rhythm guitarist, is a good friend of mine. He said they did not copy the flute riff from “Kookoobura”, but admits it is similar, but only coincidental.

It's possible. I play the Renaissance lute, and I know of at least two pieces from the sixteenth century that open exactly like later works. One is "The Earl of Derby's Galliard," whose opening is exactly the same as "When the Saints Go Marching In." The other is a Vihuela piece titled "Pavana de Alexandra," whose opening is nearly a dead ringer for "Deck the Halls with Boughs of Holly."

[ez]

A lot of song copying goes on unintended by the composer, who pursues a melody he conceives as original, but is subconsciously from another song. I have written two full songs in the past couple years that turned out to be generously borrowed from “Independence Day” and “That’s What I Like About Sunday” One even made it on our CD efore I realized the similarities.

[Paleo Conservative]

What's really shocking is that it's not public domain by now.

What matters is whether it was public domain in 1981 when the recording was released. The woman who wrote the song was still living till 1988. I'm sure that under Australian law like American law, copyrights extend for some time period beyond the death of the creator.

[Buckeye McFrog]

Try writing something original that doesn't contain a bunch of foul and violent language.

Or, as Thomas Dolby put it after some hip-hop artist stole riffs from "She Blinded Me With Science" and filled them with obscene lyrics, "if anybody is going to create a sampled hip-hop version of my song and fill it with obscene lyrics, it is bloody well going to be me!"