Following up from a post earlier this year, an Australian judge has avoided penalizing Men At Work the maximum for using a riff from another song:

A judge in Sydney has ordered the Australian band Men at Work to hand over a portion of the royalties from their 1980s hit Down Under, after previously ruling its distinctive flute riff was copied from a children’s campfire song.

But the penalty he imposed of 5% of the song’s royalties was far less than the 60% sought by publishing company Larrikin Music, which holds the copyright for the song Kookaburra Sits in the Old Gum Tree.

Kookaburra was written more than 70 years ago by Australian teacher Marion Sinclair for a Guides competition, and the song about the native Australian bird has been a favourite around campfires from New Zealand to Canada.

That seems like a remarkably sensible judgement: the song clearly does infringe, but only for a small portion of the entire recording: it’s not critical to the success of the song, but it does contribute to its overall atmosphere.

Following up from earlier this month, EMI is appealing against the decision that Men at Work plagiarized a popular folk song in their 80′s hit “Down Under”:

Papers filed with the Federal Court in Sydney listed 14 grounds for appeal and stated songwriters Colin Hay and Ron Strykert did not breach copyright.

It said similarities may be noted only by a “highly educated musical ear”.

[. . .]

EMI Music said the inclusion of the melody was, at most, a form of tribute to the tune.

In its appeal, EMI also argued that the Girl Guides Association of Victoria state actually owned the copyright, as they sponsored the 1934 Girl Guides song competition for which the song was written.

The decision seemed odd in another way: lack of proportionality. The “offending” part is a very small section of the song, which would not seem to justify awarding 40-60% of the profits from the work to the plaintiff. Perhaps Australian law allows it, but it seems to be an attempt to “right a wrong” by inflicting a disproportional penalty, rather than an equitable one (that’s not to say I think the decision was correct, just a comment on the initial finding).

Remember the flute part in “Down Under”? Men at Work now probably wish they’d chosen a different way to highlight typical Australian tunes, as they’ve been ordered to pay costs to the estate of Marion Sinclair for using the theme to “Kookaburra Sits in the Old Gum Tree” in their song:

Larrikin Music had claimed the flute riff from the 1981 hit was stolen from Kookaburra Sits in the Old Gum Tree, written by Marion Sinclair in 1934.

The federal court in Sydney ordered compensation to be paid.

That amount has yet to be determined but Larrikin’s lawyer said it could reach 60% of income from the song.

“It’s a big win for the underdog,” said Larrikin’s lawyer Adam Simpson after the judgment.

Sinclair, who died in 1988, wrote the song for performance at a Girl Guides Jamboree in 1935.

Kookaburra Sits in the Old Gum Tree has since been sung by generations of Australian schoolchildren.

Oddly enough, I downloaded this song just last week, prompted by a recent Mark Steyn column.

Men At Work came from a land Down Under and in January 1983 they were on top of the world: “Down Under” was Number One not only in Oz but also in the United Kingdom and in the United States, and to this day Men At Work are the only Australian band to have topped simultaneously both the British and American singles and albums charts. A lot of the pop songs from that period you’ll still hear on the Eighties oldies stations: in America, Men At Work were succeeded at the top of the Hot One Hundred by Toto and “Africa”, which is pleasant enough in a bland sort of way; and in Britain they made way in the Number One slot for Kajagoogoo and “Too Shy”, and gosh, it’s years since my fingers have had cause to type the word “Kajagoogoo” and even then it was as a punchline for a cheap gag. But “Down Under” transcended the passing fancies of the hit parade and has become an Australian anthem. There have been other international Oz hits, of course, notably Rolf Harris’ classic recording of “Tie Me Kangaroo Down, Sport” – and, as we always have to point out whenever the subject arises, a truly great novelty song like “Tie Me Kangaroo” should never be confused with a truly atrocious one like Charlie Drake’s “My Boomerang Won’t Come Back”.

But “Down Under” has become a kind of musical shorthand for contemporary Australia