Judge rules against Men At Work

STAFF REPORT

A judge ruled that the famous flute riff in Men at Work's "Down Under" plagiarized a popular nursery rhyme about a Kookaburra written in 1932.

Thursday's ruling marks the end of a three-year legal battle that started with a trivia question on Australian quiz show "Spicks & Specks."

The show's panelists were asked to name the Australian folk song that could be heard in the popular single which was first released in 1979.

The answer was "Kookaburra," a nursery rhyme still heard in Australian schools and playgrounds that was written by teacher Marion Sinclair, who later entered it into a competition run by the Girl Guides Association of Victoria.

Australian music group Larrikin Publishing bought the copyright to the song in 1990 after Sinclair's death in 1988.

It wasn't until the quiz show in 2007 that Larrikin Managing Director Norman Lurie became aware of the songs' similarities and the potential for a law suit.

On Thursday, Australian Federal Court judge Peter Jacobsen found that the flute riff in "Land Down Under" did mimic the Kookaburra song.

"I would emphasise 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," he said.

"Down Under" was composed and performed by Men at Work founding member Colin Hay in 1978. Greg Ham added the flute riff after he joined the band in mid-1979.

According to court documents, Ham added the riff to the song to inject some "Australian flavor." He admitted he had heard the song while growing up in the country in the late 1950s and was "pretty sure" that "Kookaburra" was in his school's song book.

Jacobsen found that Ham deliberately included the bars from "Kookaburra" into the flute line, but accepted that Colin Hay didn't realize it was from the nursery rhyme until early in the last decade.

"The song 'Down Under' is my friend. It has always been my friend, ever since it was born. I have been playing it for over 30 years, to audiences the world over, and will no doubt play it for as long as I am able," Hay said in a statement Thursday.

Larrikin is seeking 40 to 60 percent of the royalties earned by "Land Down Under" in Australia during the last six years, the time limit imposed by Australian law.

EMI is said to be considering appealing the ruling. Another hearing will be held in the next six months to determine royalties owed.

The shorter, more popular version of "Land Down Under" was released in 1981 on the band's hugely successful "Business as Usual" album.

The album shot to the top of the music charts in Australia, the United Kingdom and the U.S, earnings millions of dollars in sales.