A judge in Sydney, Australia ruled today that Men at Work’s ’80s megahit “Down Under” infringes on the copyright of an old children’s song called “Kookaburra Sits in the Old Gum Tree,” according to the AP. “Kookaburra…” was originally written by an Australian teacher named Marion Sinclair, who died in 1988. The song’s copyright is now owned by the publishing company Larrikin Music, which sued for unpaid royalties. “I have come to the view that the flute riff in ‘Down Under’ … infringes on the copyright of ‘Kookaburra’ because it replicates in material form a substantial part of Ms. Sinclair’s 1935 work,” said Federal Court Justice Peter Jacobson. The judge ordered the litigants to return to court on February 25 to discuss compensation.
Men At Work singer Colin Hay has responded to the judge’s decision with a lengthy statement, in which he admits that bandmate Greg Ham “unconsciously referenced two bars of Kookaburra on the flute… and it did end up in the Men At Work recording.” But Hay argues that it was part of the song’s arrangement, not its composition. Hay concludes by writing that the song, “lives in my heart, and may perhaps live in yours. I claim it, and will continue to play it, for as long as you want to hear it.”
Below, I’ve embedded the video for “Down Under,” another of a children’s choir singing “Kookaburra Sits in the Old Gum Tree,” and a third clip that highlights the parts of the two tracks that are allegedly similar. What do you think about the judge’s decision?
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