Men At Work's 'Down Under' stole from children's song, judge rules

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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Comments (43 total) Add your comment
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  • Barf

    god. how stupid. this is a classic song, leave it alone.

    • PUH-LEASE

      And they are JUST NOW figuring this out because……………………??

  • Please.

    How many years ago was that a hit?

  • wizard62

    I think that Judge is a Kookaburra! I hear no resemblance of these two songs at all. Ridiculous waste of court time and tax-payers money.

    • harry

      ha ha ha ha ha ha!!!

    • yogi

      Wizard62: I hate to tell you you are wrong, but if you listen to the comparison recording, It is nearly a note for note HARMONY. Thing is, In the USA this would have been a public domain item by now. I am sure the writer had that music in his head from childhood. I DON`T feel they should pay royalties though. Sounds like a music label trying to get something for free. I say let it be. Cheap Basterds.

  • jb

    The whole ruling is based on notes played by the flute.

    Why did you link a reference to kids singing the song and not of the flute?

    More cowbell, and MORE FLUTE!!

    • jb

      aha..a new link. ask and ye shall receive.
      now if anyone on this site knew anything about Australian law and copyright infringement, we might actually be able to form an opinion!

  • billy ray

    I always thought that “Who Can It Be Now” sounds like “Kumbaya”.

  • Joe

    Land Down Under Video = preview of Lost Season 6.

  • dani

    Haha, I can hear it in the flute solo!
    You know, that is really ridiculous. How would they even catch that!

  • Liz

    Seems like the statute of limitations should have run on that claim many years ago!

  • Flyer

    I guess I need someone to actually put the two measures of the flute part side-by-side with the two measures that were “copied” from the Kookaburra song, because I’m not hearing it. And to add injury to insult, other news reports are saying that Larrikin Music is trying to claim rights to 60% of all proceeds ever generated by “Land Down Under”! For two measures? Somthing is seriously wrong with the courts Down Under!

  • Horatio

    I use this tune sometimes on my radio program, and the judge is out of his/her mind.

  • Grammy

    Denny Blaze: The Average Homeboy. ‘Nuff said.

    Check it out.

  • Chris Bailey

    I bet this is so much more common than people think…I’m a songwriter and I always wonder if anything I came up with is original or if it was stuck in my subconscious from something I heard as a kid or any other place

  • Splee

    I hear it more in the choir video than in the video that tries to compare the two. The way the kids sing it, it’s kind of a clear lift…

  • Alan

    I’ve tried to follow, but the supposed resemblance completely escapes me.

  • aby

    What took them so long to take them to court or does the Australian justice system just move really slow? Or is this a case that the folks who now own the song decided to sue while the original writer of the song didn’t particularly mind.

    • @ aby

      I’d guess the second one. Agree: if the original writer didn’t object, the lawsuit shouldn’t be allowed.

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