back to article Men at Work lose Down Under plagiarism appeal

Australia's Federal Court has rejected an appeal by EMI Music and Men at Work against a ruling that part of the 1983 hit Down Under was lifted from Kookaburra Sits in the Old Gum Tree. In February last year, a Sydney court decided that a flute riff from Down Under was indeed swiped from the 1934 song written by Marion Sinclair …


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  1. Juillen 1

    Killing creativity...

    When small parts of something that occurred 50 years ago can stop current creativty in its tracks, there's something VERY wrong with the system.

    1. Anonymous Coward

      @Juillen 1

      Your timescale is all wrong; no one's "current" creativity has been stopped.

      The infringing work was published 30 years ago (the single for "Down Under" was released in 1981) and the work upon which it infringed was published some 77 years ago.

      1. Ken Hagan Gold badge

        and 77-30 is 47

        What? You want body text, too?

  2. Anonymous Coward

    Is 'Blowing a Flute Down Under' a euphemism for something?!

    That's all I have :)

    1. dssf


      Oh, wait... belay that...

  3. indicator

    50 year rule?

    I thought that copyright on a song expired after 50 years?

    1. Annihilator Silver badge

      After death

      It's 50 years *after death*. But in Australia, it's 70 years. Marion Sinclair died in 1988.

  4. Mike Street
    Thumb Down

    Hoist by their own retard

    Artists generally, led by the talented Mr Richard, have been trying to get copyright extended. This suit demonstrates that its not really in even their own interests to do this. Marion Sinclair is most likely no longer alive, but some living musicians have to pay a ton of money to some people whose only musical talent may be in being related to the author of the original song. Most likely, it is a company which has bought the rights.

    How does this lead to a fairer deal for artists?

  5. jrsofty

    Don't know what they were thinking honestly,

    EMI says that the flute riff could only be recognized by a highly educated musical ear. Well I guess that means that my music teacher in elementary school was really top notch, because she introduced me to the Kookaburra song well before Men at Work came out with their song in 1983.

    When I heard their song and the flute riff, I was pretty excited because I recognized the Kookaburra song being mixed into their music.

    I guess at the age of 11 years old I had a highly educated musical ear, and that in a country where we don't have Kookaburras or gum trees for that matter.

    1. lglethal Silver badge
      Thumb Down

      Well considering...

      Considering that the owners of the copyright didnt twig to the fact that the riff was even in Down Under until it came up in a musical quiz show as a question (the Aussie equivalent of Never Mind the Buzzcocks - although without the humour, big bands or anything that makes NMtB funny) id say the majority of people dont have the highly educated musical ear. Id also suggest that the copyright owners dont either, although maybe there musical education focused on things of actual importance...

    2. IsJustabloke

      I refuse to enoble a simple forum post!

      I doubt anybody outside of Austrailia would have recognised it however.

  6. jake Silver badge


    Thanks for the earworm. It'll be with me for days. Twats.

  7. unitron

    How many Kookaburra songs are there?

    I first heard a "Kookaburra sits in the old gum tree" song over 50 years ago, and can still recall the tune, but it bears no more resemblance to the Men at Work song than it does to a squadirillion other pop tunes.

  8. Anonymous Coward
    Anonymous Coward


    Men At Work - appearing at in a provincial panto near you soon?

    Or already shovelled their assets somewhere out of reach.

  9. Code Monkey

    Unrecognisable my arse

    I spotted the connection as soon as I first heard Down Under and my 10-year-old ear was as musically uneducated as you can get.

  10. John Tserkezis

    Those who live by the sword and all that...

    At first instance I have to say the claim is petty, especially since they waited more than a couple of decades before realising their tunes had been "shamlessly stolen"...

    Then again, perhaps now they EMI know what it's like to drag grandmothers, children and dead people through the courts for tens or hundreds of thousands of dollars after "shamelessly stealing" twenty bucks worth of their highly valued property.

    Or not. Who cares, as long as the vultures are busy eating each other...

  11. cosymart

    Generous Gift

    I trust that Larrikin Music will donate a generous portion of their loot to The Girl Guides...?

  12. Steen Hive

    "File Sharing"

    Is apparently "criminal" because it supposedly deprives so-called "rights-holders" of revenue one would of course would have spent on their shit in the first place. That said, contemplating paying money, 5% of which goes to creativity-killing parasites living of the back of a 75-YEAR-OLD piece of music, should carry the death penalty for criminal stupidity.

  13. Greencat


    @jake - they say the best cure for an earworm is another. How about "We buy anycar dot com..."

    1. Dr. Mouse Silver badge


      I had no choice but to downvote your post...


    2. Anonymous Coward

      You Fuckwit!

      Your lucky it's just your coat I'm handing you.

    3. jake Silver badge


      "anycar"? I don't know that one. Must be advertising related.

      Current tunage: my Jerry Jeff Walker collection is on shuffle ... that should kill the 'worm :-)

      1. strum

        Jerry Jeff

        That would be 'All just Public Domain'?

        1. jake Silver badge


          That was Bob Livingston and Gary P. Nunn ... Walker covered it. Currently, "Gettin' By" ... next up, according to the computer, is "Driftin' Way Of Life". And it's only 5am ... must make coffee ...

  14. Cameron Colley

    I hope Men At Work don't have their assets in Australia.

    Here's hoping that they'll set up home somewhere else and deprive the parasitical cunts of their pound of flesh.

  15. Cunningly Linguistic
    Thumb Up

    It's about time...

    ...EMI got a taste of their own medicine.

    Frickin' accountants.

  16. Nick Galloway

    Where the law is about making money, ONLY

    This is an outright cash grab by an opportunistic company that bought the rights to the original song well after the Men At Work song, all aided by some sharp but ethically vacuous lawyers. Is there not some statute of limitations on this sort of thing?

    Has no one asked the question, why has it taken the better part of 30 years for Larrikin to push this case?

    I must note that the EMI load of old tripe about 'barely recognisable' is stretching the friendship. Surely it was in there because what can be more Australian that a Kookaburra!?

    I hope the Larrikin lot get nothing, EMI gets much the same, the lawyers fall headlong into the ethical vacuum in which the exist and the Men At Work boys get to enjoy the fruits of their labour. Then again, I migt be wrong,,,!

  17. kain preacher

    Statute of limitations

    DO they not exist in Oz ?? Even in the US this would of gotten tossed and the lawyers hand slapped ,

    1. Tom 13

      Hate to say it, but I expect

      Oz has a shorter statute of limitations than we do in the US. Every time The Mouse is about to fall into public domain because of how long ago Walt died, Congress passes an extension to the limitation. Last time around it went all the way to SCOTUS who said something to the effect of "this still qualifies as 'limited' but it might not if we hear this case again in 25 years."

    2. Chimp

      My heart gently bleeds...

      In Botany Bay, a dead crim is suing a couple of live crims and a record label. And winning. Deciding who I want to lose is like watching England against the Boks... Can they *both* lose and make for a perfect result?

  18. stranger

    just my 2 cents

    for those who are wandering why did they file the lawsuit many donkey years after the song was out: They are humans, they might have even enjoyed the song and always listened to it. But they never realized that it stepped on their copyright (?) until someone pointed it out.

    you can't really expect them to memorize every one of the tunes that they have the rights too, and also expect them the play every release track just to see if it used their track! Unless someone* point it out, they will never know!

    * the someone can be a staff member or a member of the public.

    1. LaeMing


      the recent behaviour of the record labels pissed them off enough that they decided to give them a taste.

  19. Davesonso

    Dumpster Diving

    Case of a holding company doing a little dumpster dive through an defunct firm's assets -- lawyer discovers something interesting in what was essentially "a box of old files" and thinks, "Gee, this sounds familiar from my school days."

    Fast forward a few months, and it turns into a squeeze play for 40-60% of the hit song's take.

    Unethical for sure, but unfortunately, its built into the copyright and publishing business.

    Much, much worse in the tech industry where crappy, obvious, and overly-general patents are hoovered from dead start-ups in the hopes of suing a deep-pocket company that accidentally developed, marketed and sold something for profit that a judge might believe is similar to the found patent.

  20. Kermonk
    Thumb Down

    And that is why copyright is amoral

    Once a long long long time ago it was meant to foster creation, now its just to make the few and the greedy even more greedier.

    Copyright should last no longer than 10 years and never be able to be extended - that's what the majority of the population wants, even if the fat politicians decide otherwise.

    1. Sam Therapy
      Thumb Down


      I'm a musician and songwriter. I own outright copyright on my work. I don't see why I should have to give it up, ever. I would also like my family to benefit from my work when I'm no longer around to provide for them.

      1. Steve Bush

        bollocks to bollocks

        copyright is *granted* by society in THEIR own interests - creatives have no special say in the matter

      2. paulc
        Thumb Down

        sory mate...

        I'm an amateur musician and songwriter... but current copyright is ridiculously long... It should revert to the original periods as set down in the Statute of Anne... just 14 years... after which the work passes into the Public Domain... 14 years is plenty of time to make money off of a piece of work... there's no way you should be able to continue rent seeking off a work any longer and preventing others from building on it and using riffs and melodies from it in their works after you've enjoyed your 14 years...

      3. CD001


        So all of Ghengis Khan's descendants (of which there are many) should receive royalties on "Yüan chʾao pi shih"*? What about Shakespeare's descendants?

        Long copyright terms merely give the holders a legal stick to fleece everyone else; and the holders aren't necessarily the creators. As a musician and songwriter I bet you'd be pleased as punch for someone to chase after you if you happened to unknowingly infringe upon the copyright of an obscure piece of music from the 60s - and have to give over all the royalties on your multi-platinum, life altering success?

        Hell, if you _really_ want it to go on and on it could be your descendants fighting legal battles with the descendants of other songwriters who've been dead for decades. That would effectively kill music (well anything created really) entirely - I'm sure we could all trace several creators back in our ancestry.

        *(yeah facetious examples, and yes I Googled that wording, it's "The secret history of the Mongols" - only picked that as an example because there are a hell of a lot of people descended from Ghengis Khan)

        1. Spleen


          "I would also like my family to benefit from my work when I'm no longer around to provide for them."

          So would everyone. Unfortunately, for the vast majority of people - from binmen to ultrapaid execs - their power to earn money dies with them. They content themselves with not blowing all the money they make while alive and leaving that to the kids. Why should arty types be special in that regard?

  21. Dinky Carter

    Lots more where that came from...

    When will M sue the makers of Ghostbusters for blatantly ripping off "Pop Musik?"

    1. hamsterjam

      "Ghostbusters" wasn't based on "Pop Muzik"... was based on "I Want A New Drug" by Huey Lewis and the News.

      I recall the story vaguely from when the film was new. Apparently the film's makers had edited some sequences around the song because it was a big hit when the film was being made. However, the plan for the film was that it should address a family audience and so "ixnay on the ugdrays". Which made it necessary to hire a competent musician who could create something which would fit the completed sequences but not turn the youth of America into slavering substance abusers. As to whether that last part succeeded...

      Off the top of my head I know of two other examples: one where a film used a David Bowie piece in a sequence which was then replaced by a piece of "original" music which is practially identical (hands up the five of you that saw Nic Roeg's "Insignificance") and one where clearly P Gabriel's "Sledgehammer" was the model but didn't make it into Luc Besson's "The Big Blue". More? Cole Porter's "Be A Clown" vs Freeman and Brown's "Make 'Em Laugh".

      Fact is, music is made from only twelve notes. Also music is very often developed from other music. The "Kookaburra" lift in "Down Under" made me laugh back then, because it alluded to the sardonic attitude many Ockers demonstrate towards their own culture, and it fit beautifully into the song.

      On the one hand this decision is an indefensible example of greedy rent-seeking scumbags using lawyers to steal somebody else's money. On the other hand EMI's "unrecognisable" claim is not disingenuous, it is mendacious, as the musical quote was clearly intended to be recognised at the time.

      One last thing: I learned the song "Kookaburra" in a primary school music lesson in the 60's. We were told that the song was inspired by the call of the eponymous bird. Aren't there any avian lawyers that can step in here and get the money to the *original* composers?

  22. John H Woods Silver badge

    Next up:

    Dvorak vs. Jaws

  23. Peter Gathercole Silver badge
    Thumb Down

    For those who don't recognise it

    Take the flute riff. Work out where the bars are (clap 4 beats to the bar, along with the rhythm) such that you get 8 bars or 32 beats for the whole riff - it's a middle 8 after all) and it is the third and fourth bars of the flute riff, which matches the first line of the kookaburra song. It is pretty much note for note, with the same rhythm as well.

    It's quite clear that it is the same, but I ask you, how can 2 bars, 11 notes in total be worth 5% of the revenue of the song. Especially when the original song is, I'm sure, meant to be onomatopoeic. At least it's the writers revenue they are going after. That should limit the payout significantly.

    I'm absolutely certain that this ruling will lead to Australian lawyers finding two bars of matching melody in different songs, and then using this ruling as the basis for a copyright infringement claim. I'm sure that it could be done by computer if you had access to the right MIDI files.

    There is at least one song in the UK chart at the moment, which every time I hear it, I say to myself "That's a song already", but I just can't put a name to it. I must try to remember to put more effort into working it out.

    I feel that this should be dismissed exactly as EMI put it, as an unconscious tribute to the original song. Otherwise we will have to have melody searches against all songs currently in copyright before a new tune is published, in the same way as we have to have patent searches now. This will stop amateur writers dead in their tracks in the same way as patent searches stops small inventors now!

  24. Anonymous Coward
    Thumb Up

    Yes, but...

    Have any thumbs-up or thumbs-down made it into 3 digits?

    On topic; the music industry and its minions are working to kill it for everyone and maybe they will succeed. Indies may be the only thing left out there.

  25. ShaggyDoggy

    My client

    Mr. A. Kookaburra would like it drawn to your attention that pursuant to ,,,,etc,,,,,etc,,,,,,

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