by Andrew Slotnick
Managing Editor

The copyright holders and songwriters of Men at Work’s hit “Down Under” have been ordered to pay the winner of a copyright claim in Australia’s federal court. Larrikin Music Publishing won a lawsuit in February 2010 against EMI Songs Australia, Colin James Hay, and Ronald Graham Strykert; the text of the decision can be found here. Justice Peter Jacobson established that the flute riff from the popular song had been lifted from well-known Australian folk song “Kookaburra Sits in the Old Gum Tree.”

An updated ruling from July 6 2010 grants the publishing company 5 percent of the song’s royalties since 2002—substantially less than 60 percent of the royalties the song had earned since its publication in 1981, the amount originally requested.

According to BBC News, co-writer Colin Hay called the plaigarism “inadvertent, naive, unconscious.” Even with no malicious intent, it is hard to ignore the similarities between the two works. Below are transcriptions of the relevant portions of the songs written in the same key for illustration. They show that measures one and two of “Kookaburra” are identical to the flute part in measures two and four of the Men at Work song.

Hear “Kookaburra Sits in the Old Gum Tree”

Hear “Down Under”

Although neither US nor Australian copyright law contain exemptions for unconscious copying of a protected work, a similar suit in an American court may have been able to claim the incorporation of a well-know folk melody as fair use. Australia has a similar concept called “fair dealing” which covers only very specific instances, unlike the open-ended system in the US in which the courts decide whether a use is fair on a case-by-case basis.

This case should serve as a warning to the songwriters and composers at Berklee. Accidental copying can happen, but creators should take extra care to make sure that a perfect melody isn’t too good to be true.