“Down Under” was a huge song in the 80s, and it is making news again. The owner of the rights to that song, Larrikin Music, sued Men at Work, saying their 80s classic infringed on their copyrights. They own the rights to “Kookaburra Sits in the Gum Tree,” and say that Men at Work used part of their melody without clearance.
And Australian Federal Court judge Peter Jacobsen decided last week that Larrikin was right. At issue was a flute riff that appears in “Down Under” three separate times. Interestingly, it wasn’t Larrikin’s sense of injustice that led to this lawsuit – it was a quiz show.
Spicks and Specks, a trivia show, asked contestants to name the folksong that could be heard in “Down Under.” Kookaburra was the answer, and Larrikin Managing Director Norman Lurie said, “Hey, yeah, that does sound familiar.” (Or so we can conjecture). And thus started the three year battle that culminated in Judge Jacobsen finding for Larrikin.
Judge Jacobsen said, “I would emphasize that the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the “hook” of that song.” If it were, the damages paid by Men at Work could be much more substantial.
CNN reported on the story and quoted Daniel Mullensiefen, co-director of the masters program at Music, Mind, and Brain at London’s Goldsmiths University, as saying, “There’s a lot more to “Down Under” than that flute melody. It’s not the main melody and not the main hook and I suppose that in the end will mean that it will be a minor share of the royalties that this publisher can claim now.”
According to Men at Work, the reference to Kookaburra was “completely innocuous.” Songwriters Colin Hay and Ron Strykert say that the flute riff wasn’t even in the original song, that they wrote it for acoustic guitar and they play it that way today. Larrikin bought the rights to the song for $6100 and is now seeking 40 to 60 percent of Men at Works’ royalties from the song.
Tom Service had this to say on his blog on the Guardian’s website, “If that kind of micro-sampling is to become the subject of court cases the world over, no song that has ever been released is safe.” If Larrikin is entitled to royalties, the statute of limitations has run out so they will not receive any royalties from the 80s or 90s, when the song was wildly popular.
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