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Judge Finds 'Down Under' Flute Riff Plagiarized From Nursery Rhyme

I have had the flute riff from Men at Work's "Down Under" stuck in my head all morning thanks to the Federal Court in Sydney, Australia, and now I'm going to pay it forward to Legal Blog Watch readers.

Today, Australian Federal Court judge Peter Jacobsen ruled that the famous riff in "Down Under" plagiarized a popular nursery rhyme about a kookaburra written in 1932. The nursery rhyme is called "Kookaburra Sits in the Old Gum Tree," and I think it is pretty safe to say that most of you non-Australians out there (like me) will probably hear it and think, "Hey, that sounds just like the Men at Work song!"

The court emphasized that its ruling did "not amount to a finding that the flute riff is a substantial part of "Down Under" or that it is the 'hook' of that song," which will be key issues for damages.

CNN reports that "Down Under" was composed and first performed by Men at Work's founder, Colin Hay, in 1978. Greg Ham added the flute riff after he joined the band in mid-1979. Ham admitted in court that he had heard the song while growing up in Australia in the late 1950s and was "pretty sure" that Kookaburra was in his school's song book.

Larrikin Publishing, the copyright holder of the "Kookaburra" song, is seeking 40 to 60 percent of the royalties earned by "Down Under" in Australia during the last six years, the time limit imposed by Australian law.

Notably, the current legal battle only arose because of a trivia question asked on Australian quiz show called "Spicks & Specks." The show's panelists were asked to name the Australian folksong that could be heard in the Men at Work single, and the answer was "Kookaburra." You can see the moment on the show that touched off the case in the video below.

Posted by Bruce Carton on February 4, 2010 at 10:57 AM | Permalink | Comments (4)


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