Radio Australia Today Editorial

Men At Work’s Down Under a rip-off? Don’t think so.

5 February 2010

It might say something about my ears, but I can’t hear it myself.

A Federal Court judge has ruled that a tiny part of the Men At Work hit actually infringed copyright by incorporating a single bar out of a classic Australian tune, Kookaburra Sits In The Old Gum Tree.

People with good musical ears tell me that the line is in there, in a flute part about a minute or so into the song. Maybe why I couldn’t get it is partially because it is a counter melody being fluted under the main tune. Or maybe it’s because my ears are diminished somewhat because of a lifetime of playing drums.

The original Kookaburra tune was composed in the early 1930s by a Melbourne teacher Marion Sinclair for a Girl Guides jamboree.

When Men At Work recorded Down Under in 1979 and 1981, it went on to become a huge hit, revived during the America’s Cup yachting campaign in 1983, which Australia went on to win. When I worked in Los Angeles during the 1984 Olympics, the song was heard everywhere. It was huge.

(Colin Hay and his wife with us in happier times)

Yet it wasn’t until 2007, after the alleged similarities were raised on a television quiz program, that the current copyright holder, Larrikin, reportedly realised that the riffs might be the same, and sued.

Yesterday the judge surprised many with his decision that the riff was plagiarised, a decision that leaves Men At Work liable to pay compensation, and considerable legal costs.

Outside the court, Larrikin’s solicitor said the damages could run to 60 percent of the income derived from the song, which would be millions of dollars.

He is quoted on the Australian Broadcasting Corporation’s newsite as saying the following: “Obviously the more the better, but it depends.”

For what? At most a couple of stranded bars underneath the main tune in a song. You might cheer this decision, believing that this is a strike against people who plunder the music of others. But you might be of a mind to think that this is a terribly unfair decision. This is a song that most probably would’ve been just as strong without the errant bars of flute. I certainly did not buy the song because of a Kookaburra reference. As I said, I didn’t even realise it was there.

If the damages judgement does offer anything like the 60%, then it would be just plain unfair. It would be suggesting that the Kookaburra bars were worth more than the rest of the song.

It isn’t. Not by a long shot.

- Phil Kafcaloudes