Appeals Court Still Says 'Down Under' Infringes On Decades Old Folk Song

from the men-at-work dept

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.

Filed Under: australia, copyright, folk song, kookaburra
Companies: emi, larrikin music


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  1. icon
    Ron Rezendes (profile), 31 Mar 2011 @ 3:16pm

    Explanation please....

    How does a company, who didn't own the rights at the time of the "infringement" (obviously used in the loosest possible terms even for those who are the most die hard pro-copyright), even make a case for damages when they didn't own the rights at the time this occurred?

    Apparently, both the justice system and the direction in which water flows South of the equator are in direct contrast to what happens North of the equator!

    I consider myself pretty open minded but I'm having a tough time wrapping my head around this one (or two if you count the appeal that was also lost).

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