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Song: Down Under (1982)
Artist: Men At Work
Album: Business As Usual (CBS)
Men At Work’s Down Under is probably the most iconic Australian pop song of all time, and many consider it to be something of an unofficial Australian National Anthem. Unfortunately, the song is forever muddied by a court case that accused the band of borrowing the main melodic line from a popular children’s song in Australia, and which has become something of a children’s classic.
The song, Kookaburra Sits in the Old Gum Tree was originally composed by Marion Sinclair for a Girl Guides jamboree competition in 1934. Before she died in 1988, Sinclair sold the rights to the song to music publishing company Larrikin. Larrikin, in light of the tremendous commercial success of Down Under, sued Men At Work and EMI in 2009 for royalties. The label claimed that when Sinclair submitted the song to the Girl Guides it became their property, and she then had no rights to sell it, meaning Larrikin had no rights.
Kookaburra Sits in the Old Gum Tree, which is traditionally sung in a round, consists of four bars. The part of Down Under that incorporates the melody is the flute riff, which repeats throughout the song and mimics the melody of the main verse line ‘Kookaburra sits in the old gum tree and the changing line that follows it. Down Under’s flute riff is, in all regards, a much cooler riff than the original. However, there is no real denying that it was similar to Kookaburra, and this was never really denied. In all, these two bars comprise perhaps 5% of Down Under. However, these two bars are half of the entire Kookaburra song. Since the crux of the matter was whether the tune used a substantial part of Kookaburra, this was enough.
Lead Singer Colin Hay occasionally sang the words of Kookaburra when the band performed Down Under live. Ironically, it is questionable whether even many Australians would ever have recognized the flute part as being Kookaburra and if the similarity would ever be recognized, if it had not been made somewhat common knowledge, enough so that it was brought up in a television quiz show called Spicks and Specks.
It was the quiz show which brought the similarity to Larrikin’s attention! Otherwise, the company, which acquired the rights for the song in 2002, might never have brought the suit. The fact that Hays sometimes actually sang Kookaburra lyrics, and the video for the song features the flute player sitting in a tree and playing the flute part, was a bit damaging. Despite this, unless explicitly told, most people will have to listen closely to Down Under to pick out the similar part. Below is a YouTube video comparing Down Under with Kookaburra.
The courts rule in Larkin’s favor, awarding them 5% of the royalties from Down Under since 2002 (the year they acquired the rights). There were several appeals but the ruling stood.
The band member who sat in the tree and played the flute part in Down Under was Greg Ham, who also sang and played saxophone, harmonica, piano, keyboard, and organ. Probably the most recognizable member after Colin Hay, he joined the band in 1979, as a replacement for Greg Sneddon, with founders Colin Hay and Ron Strykert. Drummer Jerry Spreiser and bass player John Rees were recruited to complete the lineup. It is not hard to guess how the band got its name: A road sign.
Even before they were signed to a record contract, they had become Australia’s highest-paid band. They are usually described as being a “new wave” band and were loved for their quirky sense of humor, as is evidenced on Down Under.
Men at Work got a deal with Columbia in 1979. In 1981 they released their first single, Who Can It Be Now, on which Ham played the saxophone solo. It was an international hit and went to the top of the charts in America, much higher than it went in Britain. The band toured the U.S. as the opening act for Fleetwood Mac. The song’s album Business As Usual, with rhythms reminiscent of The Police, spent 15 weeks at the top of the U.S. album chart. The group won a Grammy for Best New Artist and toured again as a headlining act. Down Under was their next hit, and it too went to No. 1 in America. Other hits include Overkill and It’s a Mistake, both from 1983’s Cargo. Both songs show considerable growth. Their next album, Two Hearts, from 1985, managed to go gold, but unfortunately garnered no top 40 hits.
In 1985, after all the original members but Hay and Ham had left the group, the band disbanded. Hay and Ham did reunite in 1996 for a Men at Work tour and also performed at the 2000 Summer Olympics in Sydney. As well, in 1998, they released a live hits collection called Brazil.
After the 2009 lawsuit, Greg Ham is known to have been very upset by the decision of the court, saying “It has destroyed so much of my song. It will be the way the song is remembered and I hate that. I’m terribly disappointed that that’s the way I’m going to be remembered – for copying something.”
Ham went on to play bass and keyboard with the R&B band Relax with Max, as well as teaching music for Carlton North Primary School in Australia. Sadly, though, he was found dead at his Victoria, Australia home on April 19, 2012. He died at the age of 58. It was hinted by Hays, who had been friends with Ham since their school days, that Ham had fallen on hard times and was “haunted,” by addiction. Friends of the musician say that the court decision greatly affected him and that he was never the same afterward. Many speculate that the decision led directly to his death.
As far as the case, most people in Australia, and most members of the music industry, seem to think it was a ridiculous case. There is very little crossover between the songs, and Larrikin was seen as simply being opportunistic. Indeed, it is not even clear who really “owned” the song, since in 1934 copyrights were not really considered and there had been no discussion at the time of writing as to who owned the “rights” to Kookaburra. The song had been a campfire song for years and years before Larikin got hold of it. Known as a “Girl Guide song” but it has branched out way past this and appears on so many children’s albums that Larrikin could not hope to ever make enough money to pay the costs of the hundreds of suits that would be necessary to leach a bit of water from this stone. Most people would assume that the song was in the public domain.
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