Men at Work to pay 5% for Kookaburra riff

06 July 2010

by Lars Brandle

Men At Work have scored a lucky break after a Federal Court judge today ordered the Aussie rockers to pay just 5% of their earnings for their controversial ‘80s hit Down Under.

Back in February, the Federal Court sided with Larrikin Music when it found that Down Under had reproduced a "substantial part" of the Girl Guide’s campfire anthem, Kookaburra Sits In The Old Gum Tree.

Justice Peter Jacobsen today ordered Men at Work’s frontman Colin Hay, fellow songwriter Ron Strykert, and EMI to pay Larrikin 5% of future profits, plus royalties dating back only as far as 2002. Although it's likely that a six-figure sum will change hands, the figure could have much greater.

Lawyers for Larrikin Music had argued that damages in the region of 40-60% of royalties accrued by Down Under would be fair. Today, Jacobsen dismissed Larrikin's compensation bid, describing it as "excessive, over-reaching and unrealistic".

Jacobsen continued, "Although the quotation from Kookaburra in the 1981 recording is - in my view - sufficient to constitute an infringement of copyright, other factors are to be taken into account in assessing the percentage interest payable in a hypothetical licensing bargain.”

Larrikin, a division of the U.K.’s Music Sales, had claimed to represent Kookaburra, which was written in the 1930s by music teacher Marion Sinclair, a life-long supporter of the Girl Guide movement.

Norm Lurie, then managing director of Sydney-based Larrikin, launched legal proceedings when the similarities were raised during a September 2007 episode of ABC TV quiz show Spicks and Specks. During the program, the question was posed, “What children's song is contained in the song Down Under?” The answer, according to the program, was Kookaburra.

A representative for Larrikin’s law firm Simpsons could not be immediately reached for comment.