Infringement ‘Down Under’

Australian Judge Rules ‘Men at Work’ Liable for Infringement Thirty Years Earlier

In February, an Australian Court held that the copyright of Australian folk classic ‘Kookaburra sits in the old gum tree’ had been infringed and its current copyright holder is owed damages.


Colin Hay (pictured above) and Ron Strykert wrote a song called ‘Down Under’ circa 1979, prior to forming 80s supergroup, ‘Men at Work.’  The song is as a celebration of all things Australian.  ‘Down Under’ was featured on Men at Work’s Grammy winning album, ‘Business as Usual.’ Over the years ‘Down Under’ has officially served to promote Australia’s image to the world, including being featured in the 2000 Olympic Games in Sydney.

‘Down Under’ consists of layered musical motifs which playfully invoke the traditional sounds of the Australian “bush.” The effect of which is to conjure up a platform for the story told in the lyrics of an Australian traveler connecting with others from his homeland. Framing the vocal narrative is a repeating flute riff, which contains a melodic flourish of 11 notes.  It is this flourish which is at the heart of the current copyright controversy, raised decades after the song was a worldwide hit.

Kookaburra

Melbourne schoolteacher, Marion Sinclair wrote ‘The Kookaburra Song’ in 1934 as part of a contest which raised money for the Girl Guides, Australia’s version of the Girl Scouts. The opening notes of the Kookaburra song imitate the staccato laugh of the Kookaburra bird.  It is this part of the song that is sampled in ‘Down Under.’

The Copyright of the Kookaburra song was not registered by Ms. Sinclair until 1975, and it was widely believed to be in the public domain until 1991 when Larrikin Music Publishing bought the rights to the song and began requiring license fees from anyone using it.

Larrikin did not pursue ‘Men at Work’ at that time it acquired the property, because the publisher was not aware of the potential infringement. Similarly, Ms. Sinclair did not seek royalties from ‘Men at Work.’  Then in 2007, a trivia question on the Australian TV show, “Spicks and Specks” asked what children’s song ‘Down Under’ contained. At first no one got it, but eventually the contestants and viewers figured it out. Word soon reached Larrikin who filed suit for copyright infringement against Hay, Strykert, and Men at Work’s record companies Sony BMG Music Entertainment and EMI Songs Australia.

Besides the flute part, there is no allegation that ‘Down Under’ infringes ‘Kookaburra’ anywhere else in the composition. The original song, as written by Hay and Strykert, did not contain the offending flute part, which was added to the arrangement in the studio by flautist Greg Ham. Ham, who is not named in the lawsuit, admitted that the purpose of the flute riff was to inject an Australian flavor into ‘Down Under.’

Fair Use Anyone?

Hay, who apparently was unaware of the reference to Kookaburra in his song at the time Ham’s flute part was first added, became aware of it later on and would sometimes jokingly sing the words to Kookaburra over that part of the song.  It has been noted by several commentators that U.S. Courts interpreting the Supreme Court’s decision in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), would conceivably find Ham’s infusion of Kookaburra for his stated purpose to fall within the definition of parody, which would make it acceptable “fair use.” For such a purpose, the image of Ham in the music video, sitting in a tree while playing the riff, would help rather than hurt their case, as it did in the Australian court.

In his decision, Justice Jacobson concluded that there was a sufficient degree of objective similarity between the first two bars of ‘Kookaburra’ and the ‘Down Under’ flute riff to amount to a reproduction of part of ‘Kookaburra.’ Compare bars one and two of ‘Kookaburra’ (Example A) with bars two and four of ‘Down Under’ (Example E) below:

Justice Jacobson further found that such replication was more than just a mere coincidence. He held that ‘Down Under’ reproduced a substantial part of ‘Kookaburra’ and did not consider the flute riff to be trivial in either a qualitative or quantitative sense.

The percentage of past royalties income from ‘Down Under’ to be paid Larrikin has not been determined yet.  Larrikin claims it is entitled to up to 60%. Justice Jacobson emphasized that his findings so far do not amount to a conclusion that the flute riff is a substantial part of ‘Down Under’ or that it is the “hook” of the infringing song.

Laches Anyone?

The equitable doctrine of laches acts as a floating and fact-specific statute of limitations, when a cause of action arose, but was not acted upon within a reasonable amount of time. In law, where a trespass occurs upon physical property, as opposed to Intellectual Property, a failure to assert one’s rights within a reasonable time operates as a waiver of those rights. Justice Jacobson did not recognize such a waiver here, despite the passage of decades between the time the cause of action arose, and the assertion of rights.

Still at Work

Men at Work won a Grammy for best new artist in 1983 for the album containing ‘Down Under’ and were disbanded by 1986. They have reunited for special events including an appearance at the 2000 Olympics in Sydney where they performed ‘Down Under.’

Colin Hay can be seen on several episodes of the sitcom “Scrubs,” most notably “My Overkill” in which he performs the Men at Work song “Overkill.” Hay, who ironically does not come from the land down under at all, but Scotland, has just released a new solo album called American Sunshine.

Special thanks to Luiz Felipe Leite for the use of his photo: Colin Hay Live @ Australian Music Festival 2007, Tom Brasil, São Paulo/SP – 09/12/07 (c) Luiz Felipe Leite, used by permission.

To see more photos by this terrific concert photographer go to www.flickr.com/luizfelipel8