Court battle over ‘Down Under’ flute riff

The band has been accused of stealing Down Under’s flute section from the children’s tune Kookaburra Sits In The Old Gum Tree – penned more than 75 years ago by Toorak teacher Marion Sinclair for a Girl Guides competition.

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Publishing firm Larrikin Music claims it owns the copyright of the riff and is suing Sony BMG Music Entertainment and EMI Songs Australia in a bid to gain compensation from Down Under songwriters Colin Hay and Ron Strykert.

A judge in the Federal Court today ruled that a company suing them for copyright infringement does own the copyright of the famous song they are alleged to have copied.

Sony and EMI deny the allegation that Men At Work copied the distinctive riff and had argued that, anyway, Larrikin did not own the copyright.

Song submitted for Girl Guide contest

They claimed copyright actually belonged to Girl Guides Victoria because Ms Sinclair submitted the song in a 1934 competition designed to raise money for a new Guides house.

Larrikin says Ms Sinclair asserted her right to copyright over the song after she won the competition and Larrikin now owns it because it bought the rights to the song after her death in 1988.

Justice Peter Jacobson made a preliminary finding that Larrikin does own the copyright to the riff.

“I do not consider that the words in the (contract Ms Sinclair signed with the Girl Guides) are sufficient to disclose, on an objective consideration, an intention to effect an assignment of copyright,” Justice Jacobson said.

Whether or not Men at Work did plagiarise the riff is yet to be determined, but the ruling brings Larrikin one step closer to the band’s royalties.

A copyright hearing will be held to decide the issue in the Federal Court on a later date.