What a shame:
In 2008, on the ABC-TV quiz show Spicks and Specks the question was posed "What children's song is contained in the song Down Under?" The answer, "Kookaburra", a song whose rights were owned by Larrikin Music, resulted in phone calls and emails to Larrikin the next day. Larrikin Music subsequently decided to take legal action against the song's writers Colin Hay and Ron Strykert.
Sections of the flute part of the recording of the song were found to be based on "Kookaburra", written in 1932 by Marion Sinclair. Sinclair died in 1988 and the rights to the Kookaburra song were deemed to have been transferred to publisher Larrikin Music on 21 March 1990. In the United States, the rights are administered by Music Sales Corporation in New York City.
In June 2009, 28 years after the release of the recording, Larrikin Music sued Men At Work for copyright infringement, alleging that part of the flute riff of "Down Under" was copied from "Kookaburra". The counsel for the band's record label and publishing company (Sony BMG Music Entertainment and EMI Songs Australia) claimed that, based on the agreement under which the song was written, the copyright was actually held by the Girl Guides Association. On 30 July, Justice Peter Jacobson of the Federal Court of Australia made a preliminary ruling that Larrikin did own copyright on the song, but the issue of whether or not Hay and Strykert had plagiarised the riff was set aside to be determined at a later date.
On 4 February 2010, Justice Jacobson ruled that Larrikin's copyright had been infringed because "Down Under" reproduced "a substantial part of Kookaburra".
When asked how much Larrikin would be seeking in damages, Larrikin's lawyer Adam Simpson replied: "anything from what we've claimed, which is between 40 and 60 per cent, and what they suggest, which is considerably less." In court, Larrikin's principal Norman Lurie gave the opinion that, had the parties negotiated a licence at the outset as willing parties, the royalties would have been between 25 and 50 per cent. On 6 July 2010, Justice Jacobson handed down a decision that Larrikin receive 5% of royalties from 2002. In October 2011, the band lost its final court bid when the High Court of Australia refused to hear an appeal.
Until this high-profile case, "Kookaburra"'s standing as a traditional song combined with the lack of visible policing of the song's rights by its composer had led to the general public perception that the song was within the public domain.
The revelation of "Kookaburra"'s copyright status, and more-so the pursuit of royalties from it, has generated a negative response among sections of the Australian public. In response to unsourced speculation of a Welsh connection, Dr Rhidian Griffiths pointed out that the Welsh words to the tune were published in 1989 and musicologist Phyllis Kinney stated neither the song's metre nor its lines were typical Welsh.
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