Men At Work's 'Down Under' loses copyright battle to a flute

Men At Work

SYDNEY (AP) — A judge ordered Australian band Men at Work on Tuesday 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 — 5 percent of the song's royalties — was far less than the 60 percent 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 Girl Guides competition, and the song about the native Australian bird has been a favorite around campfires from New Zealand to Canada.

Sinclair died in 1988, but Larrikin filed a copyright lawsuit last year. In February, Federal Court Justice Peter Jacobson ruled Men at Work had copied their song's signature flute melody from "Kookaburra."

On Tuesday, Jacobson ordered Men at Work's recording company, EMI Songs Australia, and "Down Under" songwriters Colin Hay and Ron Strykert, to pay 5 percent of royalties earned from the song since 2002 and from its future earnings. A statute of limitations restricted Larrikin from seeking royalties earned before 2002.

The court didn't specify what the 5 percent penalty translates to in dollars.

"I consider the figures put forward by Larrikin to be excessive, overreaching and unrealistic," Jacobson wrote in his judgment.

Mark Bamford, a lawyer for EMI, said the company plans to continue with its appeal of the February ruling.

"The ruling today on quantum is a good result in light of Larrikin's 'excessive, overreaching and unrealistic' claim" for a higher cut of the profits, Bamford said in a statement. "EMI Songs will now focus on its appeal against the broader decision."

Adam Simpson, Larrikin Music's lawyer, said the company had no comment on the ruling, due to the pending appeal. Hay and Strykert were not in court for the decision and couldn't immediately be reached.

"Down Under" and the album it was on, "Business As Usual," topped the Australian, American and British charts in early 1983. The song remains an unofficial anthem for Australia and was ranked fourth in a 2001 music industry survey of the best Australian songs. Men at Work won the 1983 Grammy Award for Best New Artist.