IT took a comic skit on the show Spicks and Specs for anyone to realise it, and the Federal Court to confirm it, but the Men at Work's song "Down Under" has taken its introductory flute riff from hit song derived from "Kookaburra Sits in the Old Gum Tree".
Two bars, or half the song Kookaburra, was enough to persuade the trial judge, Justice Jacobson, that the 1981 hit song Down Under had broken copyright laws.
The surprising aspect of the decision, according to Mallesons Stephen Jaques partner Natalie Hickey, is that it has taken so many years for it to come to this.
"I think this is why it has resonated in talkback over the past few days. We all know Down Under. Since the song was released, [at least] 15 million people have listened to the song. Americans have listened to it because it was a global hit. But it wasn't until this obscure reference in Spicks and Specks that we realised [the link with Kookaburra]."
The question has been asked, said Hickey, "if the tune is not recognised by many, how can the infringement occur? ... But copyright is not there to work only if people recognise it".
She added: "There is a real question [in this case] as to whether it would amount to a copyright infringement. Because Down Under is a such a massive hit and Kookaburra is such a well-known tune that [one must ask why] all those listeners have not picked it up."
Justice Jacobson's decision was influenced by Men at Work singer Colin Hay's admission that at some point after the song was released, he found out that the introductory riff was a reference to Kookaburra.
The judge said that while there were difficulties in recognising the work, he did not explicitly address the implications of there being limited, if any, aural recognition.
Hickey said: "I'm surprised it was said that the first two bars are the 'signature' of Kookaburra. Personally, I recall the second two bars more. In any event, the fact that the whole tune is only four bars means this case is at the outskirts of copyright law".
Another interesting aspect is that, from his statement, it did not appear flute player Greg Ham's intention was to copy the song. The musician said he wanted to play "an Aussie cliche melody", although he did recall Kookaburra from his school days. However, because he did not testify, the judge concluded that Ham did intend to reference it.
While in copyright law some judges have in the past looked at intention, in this case there appeared to be no evidence of the flute player Greg Ham's intention to copy the song. The musician said he wanted to play "an Aussie cliche melody". He recalled Kookaburra from his school days but he did not intend to reference it.
The judgement concludes with a warning that the plaintiff might be over-reaching by seeking 40 to 60 per cent of the song's royalties. Damages are now being assessed.