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In a clash of two of Australia’s most iconic songs, Larrikin Music, which owns the copyright to the popular Australian folk tune “Kookaburra Sits in the Old Gum Tree,” is seeking millions of dollars in royalties from popular Australian group Men at Work and their record company EMI for allegedly copying a flute melody from “Kookaburra” in their 1982 hit song “Down Under.” The controversy has focused on a particular flute riff in the Men at Work song that the judge in the case ruled last month bore “a sufficient degree of objective similarity” to the children’s song and that Larrikin was entitled to damages. The judge stated that, while “Down Under” had a decidedly different feel than “Kookaburra,” the flute riff was an iconic Australian melody which band member Greg Han had “substantially” reproduced in order to evoke “an Australian flavor.”
“Down Under” topped not only the Australian, but also the American and British charts in 1983, and Men at Work also won the Grammy Award for Best New Artist in that year. Needless to say, the up to 60% royalties that Larrikin Music is seeking could cost EMI and Men at Work millions of dollars. EMI is appealing last month’s ruling arguing that the similarities between the two bars of the songs were unlikely to be noticed by the ordinary listener. The record company is also arguing that Larrikin Music is not the true owner of the copyright to “Kookaburra.” It argues that, since the song was written as a part of a competition, the copyright actually belongs to the sponsor of that 1934 competition–the Girl Guides Association of Victoria. The original writer of “Kookaburra,” Marion Sinclair, died in 1988, and the copyright for the song was subsequently sold to Larrikin.
Although “Kookaburra” was written in 1934 and “Down Under” became hugely popular by 1983, legal action was not taken until 2007 after an Australian television game show raised the alleged similarities. This begs the question, if they really are that similar, why didn’t anyone notice until 2007? I could understand if one of the songs was obscure or relatively unknown, but I would bet that there are very few Australians (or even Americans for that matter) that are not intimately familiar with these two songs. Part of the delay may be attributed to the fact that Larrikin did not own the copyright to “Kookaburra” until after Sinclair’s death in 1988, but that still leaves an almost 20-year lapse of time. That’s a lot of time. While the lapse of time is not a relevant element in finding infringement, it should at least make the judge wonder, if the similarity is substantial, why didn’t anyone notice sooner?
Men at Work band member Colin Hay released a lengthy statement on the day of the ruling saying that while bandmate Greg Han may have unconsciously referenced two bars of “Kookaburra” during live performances that ended up on the song’s recording, it came as no surprise that no one recognized the reference for over twenty years. Hay said that by the time the song was recorded, the reference was unrecognizable. In the statement, Hay also blasts Larrikin managing director, Norman Lurie. While Lurie has stated that he is fighting for Marion Sinclair and the “underdog,” Hay points out that Larrikin is part of a multinational corporation much like EMI. He also raises the point that, although Sinclair was alive, and owned the “Kookaburra” copyright while “Down Under” was popular, she never raised any objections, because “[a]pparently she didn’t notice either.”
A date for EMI’s appeal has not been set. So, it remains to be seen whether the Kookaburra will have the last laugh. Laugh, Kookaburra, laugh all the way to the bank.
– Jamie Lynn Kern
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