is my friend. It has always been my friend, ever since it was born. I have been playing it for over 30 years, to audiences the world over, and will no doubt play it for as long as I am able. We look after each other very well. I co-wrote this song known as
, with Ron Strykert, sometime in the winter of 1978. I remember because we had played the song at the Cricketers Arms Hotel in Richmond one Thursday night, and on the way home to Arthur's Creek, just north of Melbourne, with Ron and my girlfriend Linda in the car, I fell asleep at the wheel, and ran off the road into a ditch. We ended up with the car pointing toward the sky, and we found ourselves staring through the condensation streaked windscreen at the stars above. It was cold, very cold, you know that two o' clock in the morning Melbourne cold, the kind that chills your bones.
, came down today. I am as we speak, wading through the 60 page document of his ruling. Clearly, I've had better days.
is owned and controlled by Larrikin Music Publishing, more specifically by a man named Norm Lurie. Larrikin Music Publishing is owned by a multi-national corporation called Music Sales. I only mention this as Mr Lurie is always banging on about how he's the underdog, the little guy. Yet, he is part of a multi-national corporation just like EMI Music Publishing. It's all about money, make no mistake. He litigated against EMI Music Publishing, who controls the copyright of
. He alleged that we appropriated a "substantial" part of
and in so doing, infringed upon that copyright, and incorporated it into the flute line of Men At Work's recording of
. It is indeed true, that Greg Ham, (not a writer of the song) unconsciously referenced two bars of
on the flute, during live shows after he joined the band in 1979, and it did end up in the Men At Wor k recording. What's interesting to me, is that Mr Lurie is making a claim to share in the copyright of a song, namely
, which was created and existed for at least a year before Men At Work recorded it. I stand by my claim that the two appropriated bars of
were always part of the Men At Work "arrangement", of the already existing work and not the "composition".
When Men At Work released the song Down Under through CBS Records, (now Sony Music), in 1982, it became extremely successful. It was and continues to be, played literally millions of times all over the world, and it is no surprise that in over twenty years, no one noticed the reference to
Kookaburra. There are reasons for this. It was inadvertent, naive, unconscious, and by the time Men At Work recorded the song, it had become unrecognizable. It is also unrecognizable for many reasons.
Kookaburra is written as a round in a major key, and the Men At Work version of
Down Under is played with a reggae influenced "feel" in a minor key. This difference alone creates a completely different listening experience. The two bars in question had become part of a four bar flute part, thereby unconsciously creating a new musical "sentence" harmonically, and in so doing, completely changed the musical context of the line in question, and became part of the instrumentatio n of Men At Work's arrangement of
Down Under.
Justice Jacobson has ruled, and for the most part, not in EMI's or my favor. What was born out of creative musical expression, became both a technical and mathematical argument. This ruling will have lasting repercussions, and I suspect not for the better.
Mr Lurie is a music publisher, and today Judge Jacobson ruled mostly in his favor. Mr Lurie claims to care only about protecting the copyright of Marion Sinclair, who sadly has passed away. I don't believe him. It may well be noted, that Marion Sinclair herself never made any claim that we had appropriated any part of her song
Kookaburra, and she wrote it, and was most definitely alive, when Men At Work's version of
Down Under was a big hit. Apparently she didn't notice either.
I believe what has won today is opportunistic greed, and what has suffered, is creative musical endeavor. This outcome will have no real impact upon the relationship that I have with our song
Down Under, for we are connected forever. When I co-wrote
Down Under back in 1978, I appropriated nothing from anyone else's song. There was no Men At Work, there was no flute, yet the song existed. That's the truth of it, because I was there, Norm Lurie was not, and neither was Justice Jacobson.
Down Under 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.
Sincerely, Colin Hay
Original Story Link:
Kookaburra Down Under
Larrikin wins against Men At Work in riff tiff
In 2007 on
Spicks and Specks there was a question about a nursery rhyme in a song. The answer was that in Men At Works'
Down Under, Greg Hamm plays a brief piece of the melody of
Kookaburra Sits In The Old Gum Tree. This was news to Larrikin music who own the copyright on the song and as result they sued the band over copyright infringement.
After a hearing in the Federal Court last year, Justice Peter Jacobson delivered judgment
today.
"I have come to the view that the 1979 recording and the 1981 recording of Down Under infringe Larrikin's copyright in Kookaburra because both of those recordings reproduce a substantial part of Kookaburra," he said.
"I am also of the view that Larrikin is entitled to recover damages ... for the infringements.
"Nevertheless, I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the "hook" of the song.
The judge said Larrikin had succeeded in its bid by proving the similarities between the songs.
But he said a Qantas advertisement, which also used a small similar section of the riff, was not in breach of copyright laws.
The result may mean that 60% of royalties will be forfeited by co-writers Ron Strykert,and Colin Hay.
The song was recorded in 1982, Larrikin took over ownership of the song in 2000, backdated to 1990.
Is it possible that like me, the band assumed that it was an aurally transmitted schoolyard ditty that no one owned, that it belonged in public domain? MAW were always a witty band and possibly Greg's brief woodwind flourish was a humorous tribute to their and their audience's Australian upbringing. The fact that he was sitting in a gum tree in the video when he plays the snippet, proved that he could have his tongue firmly in his cheek while still playing his instrument.A humourous momentary homage rather than a calculated act of theft.
I was surprised to learn that the song had an author at all, but in 1934 a young woman won a Girl Guide competition with
it. She had entered a competition calling for entrants to submit a song in the round, a short story, a poem or a picture that could be used for a Christmas card. Competition details were printed in a circular and the official Girl Guide magazine Matilda, stating that all material entered would become property of the Girl Guide Association of Victoria.
Larrikin claimed that it had won a tender for the copyright for Kookaburra from the South Australian Public Trustee in 1990, after Ms Sinclair died.It has had countless variations and versions as it has been folkloricly transmitted from child to child and even around the world. How many snatches of music that I had assumed were the publics have been colonised for private gain by copyright law, songs that we all share and re-transmit and give no thought that any particular person or group of people may actually own it. How many songs may have begun as a written work but have since mutated into something else altogether? Songs and snippets that the culture has commandeered made its own. The worlds most popular songs,
Auld Lang Syne and
For He's A Jolly Good Fellow are in the public domain, but
Happy Birthday is privately owned. We all swim in a sea of sound, often oblivious to its source, absorbing, mis-remembering and substituting the lyrics, modifying the melody, creating our own private mental tape loop without permission or awareness. Self sampling and downloading.
Does anyone really think that George Harrison sat down and deliberately copied
He's So Fine for his
My Sweet Lord in that well publicised plagiarism case? Of course not. Like many of us who have been bombarded with music for most of our lives, simply filing it into our subconscious where it floats around and we forget most of it except for a phantom snippet, he simply forgot that he had remembered the song. How many "original" songs sound strangely familiar? Kurt Cobain was a Killing Joke fan; did he deliberately take their
Eighties for his
Come As You Are song? The band was suing when he died. The first Led Zeppelin album incurred five copyright claims, many never settled.
Given the absorbent nature of our minds, for many of us it would be hard to write a piece of music that wasn't owned by someone, that didn't draw upon our subconscious memory bank of half-forgotten song snippets. To create a song that didn't plagiarise without meaning to would be a challenge for a lot of people. Ancient songs in blues and folk are credited as Traditional because no one knows who claimed to have written them, passed on from musician to musician over the years like a shared language rather than property. Private property is swirling all around us.
Original Link: Federal Court rules Men At Work copied 'significant parts' of children's classic Kookaburra Sits In The Old Gum Tree.
