The claim accused the pop band of stealing bars from a 1930’s Australian children’s song for its international chart-topper, “Down Under.” Apparently, Men At Work singer Colin Hay and guitarist Ron Strykert used a few bars from “Kookaburra (Sits in the Old Gum Tree)” for the flute riff.
EMI and the musicians defended themselves in the appeal by saying that only two bars from “Kookaburra” were used in the riff. They pleaded that use of the two bars in the song was “a well-intentioned tribute” to the band’s Australian origins. “Kookaburra” was written by Melbourne music teacher Marion Sinclair and has been a popular nursery rhyme with Australian children since the 1930’s.
In 1990, two years after Sinclair died, publishing rights to the children’s song were purchased by Larrikin Music which is owned by Music Sales Corporation. In the lawsuit, Larrikin Music demanded thirty percent of the royalties earned by Men At Work and EMI, twenty-nine years after “Down Under” was released. EMI argued in its appeal that Sinclair had never objected to the bars being used by Men At Work and that the similarities had been ignored for years until the recent lawsuit.
After the original ruling last year, Men At Work singer Colin Hay insisted that the flute riff was part of the song’s arrangement and not originally part of its composition. He stated that Greg Ham, who played the flute in “Down Under” “unconsciously referenced” the two bars on his flute during live shows. The bars in the flute riff did eventually end up on the studio recording.
On March 31st, the Australian Federal Court dismissed the Men At Work appeal and ruled that EMI must pay Larrikin attorneys fees and court costs. Larrikin was also awarded five percent of publishing royalties from “Down Under” since 2002.