Men at Work's No.1 hit Down Under reproduced a "substantial part" of the children's folk tune Kookaburra Sits In the Old Gum Tree, infringing copyright in the song, a Federal Court judge found today.
LISTEN AND DECIDE YOURSELFLarrikin Music, which owns the copyright to the song Kookaburra, is now entitled to recover damages - potentially a huge sum - from band members and their record company.
Larrikin alleged that the band's famous flute riff came from the children's tune, written in 1934 by school teacher Marion Sinclair.
The court has heard that Ms Sinclair had entered the competition calling for entrants to submit a song in the round, a short story, a poem or a picture that could be used for a Christmas card. Competition details were printed in a circular and the official Girl Guide magazine Matilda, stating that all material entered would become property of the Girl Guide Association of Victoria.
Larrikin claims it had won a tender for the copyright for Kookaburra from the South Australian Public Trustee in 1990, after Ms Sinclair died.
Legal action was launched by Larrikin's managing director, Norman Lurie, in 2007 after the television show Spicks And Specks raised the alleged similarities.
Larrikin sued songwriters Colin Hay and Ron Strykert and record company EMI seeking backdated royalties and a share of future profits.
Down Under topped the charts in Australia, the US and Britain and is an unofficial anthem for Australians everywhere.
After a hearing in the Federal Court last year, Justice Peter Jacobson delivered judgment today.
"I have come to the view that the 1979 recording and the 1981 recording of Down Under infringe Larrikin's copyright in Kookaburra because both of those recordings reproduce a substantial part of Kookaburra," he said.
"I am also of the view that Larrikin is entitled to recover damages ... for the infringements.
"Nevertheless , I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the "hook" of the song.
The judge said Larrikin had succeeded in its bid by proving the similarities between the songs.
But he said a Qantas advertisement, which also used a small similar section of the riff, was not in breach of copyright laws.
The parties will meet again on February 25 to discuss the findings and begin discussions about costs.
Larrikin's lawyer Adam Simpson said EMI and the band may be forced to hand over as much as 60 per cent of their earnings from the international hit record.
"It's a big win for the underdog," Mr Simpson said outside the court today.
When asked how much Larrikin would be looking for, he replied: "Obviously, the more the better but it depends - anything from what we've claimed, which is between 40 and 60 [per cent], and what they've suggested which is considerably less."
Kim Arlington is a Herald Court Reporter.
- with Bellinda Kontominas and AAP
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