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Copyright goes Kookaburra on Men at Work!

30/11/2012 | ACUMEN BUSINESS LAW

Australian band Men at Work, who had a global hit record with 'Down Under', are facing a huge legal bill after the Federal Court in Australia ruled against them in a copyright infringement case brought almost 20 years after the song's first release. 

Whilst the damages awarded may be substantial the impact on the definition of intellectual property could be even bigger. This case is different from a music sampling issue, because it broadens the definition of what constitutes a 'song' under copyright law and what constitutes a 'significant part' of a song under copyright law. The two elements that are considered when deciding whether a copyright has been infringed. 

The infringement was not actually part of the tune or the lyric to the song. It is a line which is in the arrangement of the recording. This expands on what in the past has been considered the copyrightable part of the song under law. This is hugely significant to the world of music and, according to Colin Hay the lead singer of Men at Work, could restrict musical creativity. 

Ron Strykert who co-wrote Down Under denied he had stolen the idea, but acknowledged that he was influenced by it. However the Federal Court ruled that a flute riff on Down Under bore an unmistakable resemblance to 'Kookaburra Sits in the Old Gum Tree' a folk tune written in 1935 by Marion Sinclair for a Girl Guide Jamboree. Although the writer has now died, the rights to the song were bought by music publishing company Larrikin in 1990, who went on to bring the claim against Men at Work. 

A Landmark decision in Copyright Law 

This case was described as a big victory for the underdog since Larrikin, a division of Music Sales Group, would be pushing for up to 60% of earnings of the song from industry giants EMI songs and Sony BMG Music Entertainment. Not only did the song reach number one in the UK and America, it became the unofficial Australian anthem and featured in the 2000 Sydney Olympics closing ceremony. The song tells the tale of an Australian back packer and most famously pays tribute to 'a land down under where the beer flows and men chunder' (vomit) and name checks a popular Australian food spread 'he just smiled and gave me a Vegemite sandwich' 

What's the future? 

Will this landmark case now open the floodgates to further copyright cases? Interestingly, will it give rise to deeper questions on the ownership and origins of music? Musicologists have reported that the tune to 'Kookaburra' itself is a version of a much older Welsh folk song 'Blackbird'.

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