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
    Lauriel (profile), 31 Mar 2011 @ 6:58pm


    I agree completely with what you say about music, but I'd like to highlight the danger of using a hard and fast rule for expression v meaning in any genre.

    Let's use literature, in which you say one expression only has one meaning:

    a) Woman without her man, is nothing.
    b) Woman: without her, man is nothing.

    Same words, or string of letters composing an idea, however completely different meaning.

    Another example:

    a) He didn't marry her because she was rich.
    b) He didn't marry her, because she was rich.

    Even in literature, the same foundation letters can be used to create expression that encapsulates a different idea, even if the basic 'notes' are the same.

    Completely unrelated, I had the pleasure of being in (lead singer of Men at Work) Colin Hay's audience the first time he performed that song after the ruling. He got a standing ovation, and rightly so. I've not seen anyone applaud Larrakin. Just because the court agrees with you, still doesn't mean the general population (read: market) will.

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