Court “Down Under” Finds Hit Song by Band “Men at Work” Infringed The Copyright In Children’s Song

The song “Down Under” by the band “Men at Work” has been hugely popular since the early 1980s, even becoming the unofficial anthem of Australia (it was played during the closing ceremony of the Sydney Olympics). The whimsical lyrics affectionately celebrate Australian culture, “where women glow, and men plunder.”

The song also features a famous flute riff, which was at issue in this copyright infringement case decided under Australian law.

Larrikin Music, who acquired the rights to the traditional children’s song “Kookaburra Sits in the Old Gumtree” in the 1980s, sued the band “Men at Work”, claiming that the flute tune in “Down Under” infringed their work. “Kookaburra” was written in 1932 by an Australian teacher, Marion Sinclair, for a girl scout competition and became a favorite around campfires from New Zealand to Canada.

A few months ago, a Federal Court in Sydney agreed with plaintiffs that, under Australian law, the flute melody did in fact infringe the copyright in “Kookaburra”. However, when ruling on damages earlier this month, the Court rejected plaintiffs’ demand of 60% of royalties as “excessive, overreaching and unrealistic.” Instead, the court ordered defendants to pay a reduced 5% of royalties collected for “Down Under”, and only those royalties collected in Australia (not worldwide) since 2002; probably not the millions plaintiffs expected…

Interestingly, defendants admitted that “Down Under” made “unconscious” reference to the children song. The band member who wrote the flute melody said he did so to inject some “Australian flavor” into the song. He reportedly admitted to have heard “Kookaburra” growing up in the late 1950s and was “pretty sure” that “Kookaburra” was in his school’s song book.

Comments: This case reminds us of the landmark copyright opinion in Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 178 (S.D.N.Y. 1976), in which the U.S. judge found that George Harrison had “subconsciously” infringed the Chiffon’s song “She’s So Fine” when writing ” My Sweet Lord.”

On a different note, it is worth noting that, if the “Down Under” case had been decided under U.S. law, laches might have been an available defense. After all, the song has been almost inescapable hit for over 30 years. Why didn’t the plaintiffs move quicker? Larrikin claimed that it wasn’t until a quiz show in 2007 that it became aware of the songs’ similarities… That claim may not have been sufficient to overcome a laches argument under U.S. law. (As a reminder, laches is an equitable defense that plaintiff has “slept on its rights” and is no longer entitled to the claim.)

Practice Tip: Even though this case was decided under Australian, not U.S., law, it provides a universal reminder that traditional works (such as childhood songs or rhymes) might not always be in the public domain. Under the U.S. Copyright Act, works published or registered before 1923 are the only works clearly in the public domain. For more recent works, advice your clients not to assume the work is out of copyright and to clear rights if needed.

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