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Men at Work Ordered to Pay Royalties for ‘Down Under’ Riff
29 October 2012
A judge has ordered Australian band Men at Work to surrender a portion of the royalties earned for its 1983 hit “Down Under,” ruling that the flute riff – arguably the most distinctive part of the song – was copied from a children’s song. The court ordered the band to pay 5% of its royalties to Larrikin Music, which owns the rights to the 1930s-era campfire song “Kookaburra Sits in the Old Gum Tree.”
The music publisher had asked the court for 60% of the royalties earned by Men at Work. Marion Sinclair, who wrote “Kookaburra,” which was entered into a competition run by the Girl Guides Association of Victoria to raise money for the purchase of camping facilities. The song, which paid tribute to a native Australian bird, eventually became closely associated with Girl Guides not in Australia, but also in the United Kingdom and United States.
Larrikin filed a copyright lawsuit in 2009. In February, Federal Court Justice Peter Jacobson ruled Men at Work had copied the signature flute melody in “Down Under” from “Kookaburra.” On July 6, 2010, Jacobson ordered EMI Songs Australia and “Down Under” writers Colin Hay and Ron Strykert to pay 5% of royalties earned from the song since 2002 and from its future earnings.
The court did not specify how much the 5% penalty is worth in dollars, but did note that the 60% requested by Larrikin was not a reasonable penalty. “I consider the figures put forward by Larrikin to be excessive, overreaching and unrealistic,” Jacobson wrote in his judgment.
Mark Bamford, a lawyer for EMI, said the company will continue its appeal of the February ruling. “The ruling today on quantum is a good result in light of Larrikin’s ‘excessive, overreaching and unrealistic’ claim,” he said in a statement. “EMI Songs will now focus on its appeal against the broader decision.”
“Down Under,” the story of an Australian backpacking his way around the world, reached the top of pop music charts in Australia, the UK and the US. Hay has said that any use of “Kookaburra” was “inadvertent, naive, unconscious.”
