While the iiNet case has been nothing but good news for copyright in Australia, over the past few years, at nearly the same time, there's been an important copyright case concerning fair use that has been nothing but an ugly splotch on Australian copyright law: the fight over whether or not the band Men at Work infringed on the copyright of an old Australian folk song, Kookaburra. The details of the case were really stunning once you looked at them. The Men at Work song clearly had a very brief flute line that paid homage to the folk song, but was an entirely different song on its own. Furthermore, the lawsuit came many decades after the song, "Down Under," had been a huge hit. At best, the case should have been dumped for the delay in bringing it. Even more ridiculous, the holder of the copyright, Larrikan Music, didn't even notice the supposed infringement itself, until an exec heard about it on a TV trivia show.

Still, bizarrely, the Australian courts repeatedly ruled in favor of Larrikan. When Australia's High Court refused to hear the appeal, the awful appeals court ruling stood, saying that the song infringed, and 5% of its royalties belonged to Larrikan.

As a bunch of people are sending in, it appears that this story has a truly tragic ending, as Men at Work band member Greg Ham has been found dead -- with multiple stories suggesting that this particular case and the ruling completely destroyed his life:

"I'm terribly disappointed that that's the way I'm going to be remembered - for copying something..."

Other reports say that he was so distraught over the ruling, he went back to using heroin and abusing alcohol. While he clearly had issues to deal with beyond this, it does appear that the ruling helped push him over the edge. That's really quite tragic.

More copyright insanity coming from down under. As you may recall, a couple years ago, the music publisher Larrikin sued for copyright infringement over the 80s pop hit Down Under by the band "Men at Work," claiming that it infringed on a classic Australia folk song, called Kookaburra. It seemed odd that it would take decades for anyone to make this claim, and even the boss at Larrikin only noticed it when an Australian quiz show mentioned it in a question. Then, suddenly, Larrikin wanted to get paid. The district court sided with Larrikin as did the appeals court. Now, as a bunch of you have been sending in, Australia's high court is refusing to hear the appeal, meaning the appeals court ruling stands... and apparently a big chunk of royalties from the pop song will be going to Larrikin -- who had nothing to do with the song and didn't even notice the weak connection until someone pointed it out.

At best, the Men at Work song is an homage to the folksong. All this ruling has done is demonstrate how copyright can be used to put a toll on culture.

A couple years ago, Australian music publisher Larrikin Music accused the iconic 80s Australian band "Men at Work" (and its label, EMI) of infringing on its copyright for the classic Australian folk song Kookaburra in their hit song Down Under. You can listen to both songs in the videos below:

If you can't tell (and some can't), a bit of the flute line in the Men at Work song is similar to the meldoy in Kookaburra. Most normal people would call this a tribute or an homage. But not Larrikin. The company, which only got the rights to Kookaburra (which was written in the '30s) in 2000, hadn't even noticed the similarity until it was mentioned in a game show on TV. So, of course, Larrikin sued. And, amazingly, it won... leading the court to grant Larrikin 5% of all of the song's earnings.

This is ridiculous for a variety of reasons. It's clearly not a straight copy, but a use of the well-known folk song to represent the atmosphere of Australia. The fact that Larrikin didn't even notice until it was pointed out on TV should also suggest that this wasn't some massive infringement issue. Finally, the fact that the song was a hit in the early '80s should have set off some sort of statute of limitations issue. Instead, Larrikin won...

EMI reasonably appealed the ruling, but chillienet points out that Larrikin has won on appeal as well, as a three-judge panel ruled that the song is infringing. The court even ordered EMI to pay the court costs as well. I guess the lesson is clear: don't promote decades old folk songs in your music in Australia.

Last summer we were among those amazed at the claim from a music publisher that the popular 80's song, "Down Under," by the band, Men at Work, supposedly infringed on a popular Australian folk tune, Kookaburra, that was written back in the 1930s. The publisher who sued, Larrikin, had only taken possession of the copyright on the folk tune in 2000, and didn't even notice the similarity until a TV quiz show pointed it out. You would think that this, alone, should make any copyright claim null and void. But... not to the Australian courts, who first ruled that the song infringed earlier this year and now (thanks to sinsi for pointing this out) have said that the band needs to pay Larrikin 5% of its royalties from 2002 onward. The only "good" news is that Larrikin had asked for 60%, even though the use of Kookaburra is limited to a little flute solo, and is clearly an homage to the song. Also, since the royalties only start in 2002, well after the song has faded from popularity, it may limit what Larrikin gets. Still, the whole lawsuit, and the fact that this was found to be infringing, is a bit of a travesty.

Well, apparently not all Australian courts are sensible when it comes to copyright rulings. While we recently wrote about the wonderful iiNet decision, in the comments, someone pointed to a bad decision made on the same day. It's a case we wrote about last year involving the famous song Down Under by the band Men at Work -- a big hit back in the 1980s. But in 2007, after seeing a joke on a TV trivia program about that song's similarities to an old Australian folk song, the publisher who held the copyright on the folk song sued. Yes, this was decades after the song was popular, and the publisher, Larrikan Music didn't notice any similarities at all. It seems like this should be an open-and-shut case. The "use" was minor, at best, and didn't do any damage to the market for the original song, "Kookaburra," which is popular among schoolkids, apparently. There's simply no harm done and anyone with an ounce of common sense should see that.

But... that's not what the court found. It's ruled that Men at Work infringed on Kookaburra, and now the band members and their record label need to pay up -- potentially huge sums. It's difficult to see how this makes sense under any sort of copyright regime.

Mick was the first of a few folks who sent in this story about how an Australian music publishing firm, Larrikin Music, is suddenly accusing the Australian band, Men At Work, of "ripping off" a 1930s popular Austrlian children's song, "Kookaburra" with their hit song "Down Under." Why did it take so long? Well, Larrikin only gained the copyright in 2000, but that's still 9 years of nothing. Apparently, they only noticed the similarities when an Australian quiz show brought it up -- which certainly raises questions about any "harm" done by this (if there was any actual copying). Once again, like similar stories (such as the Coldplay/Satriani/Creaky Boards/Cat Stevens battle), it's difficult to see why this even matters. Even if the songs are similar, it's not as if one makes the other any less valuable. If anything, it's only served to drive more attention to the similar songs. This is nothing more than a music publishing company desperate for cash grasping at straws to demand cash from others who have been more successful.

Anyway, for comparison's sake, here's a group of kids singing Kookaburra: And here's the song Down Under: Can anyone tell the difference?