The 80’s Australian pop-rock band Men at Work, whose vegemite-themed hit “Down Under” vaulted them into superstardom — winning them a Grammy for Best New Artist, and earning them a place in rock history as the only Aussie band to have ever concurrently had a No. 1 album and single in the U.S. — has been found liable for infringing the copyright of the 1935 children’s campfire tune “Kookaburra Sits in the Old Gum Tree.” An Australian court ruled today that the band had copied substantial portions of ‘Kookaburra,’ specifically finding that the flute riff in “Down Under” replicated a material section of the earlier work. The band was ordered to pay some 27 years of royalties earned by their hit song.
Attorneys for the company which owns the rights to ‘Kookaburra’ stated out of court that they may seek up to 60 percent of the royalties earned by “Down Under” since its release. Considering that the song has sold more than 20 million copies since its release, the anticipated damages could force the aging rockers into yet another round of reunion concerts.
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.