Almost every child who has grown up in Australia over the last 50 years or so learned a song in primary school called “Kookaburra Sits in the Old Gum Tree“.
How many of you remember singing this one waaaaay back all those years ago, as I do? And it’s still taught to primary school children today, as in this YouTube video made in 2009.
What you may not know – as I did not until a recent controversy – was that the song was penned 79 years ago by a Melbourne school music teacher, Marion Sinclair.
She wrote the song in 1932 and later entered it into a competition run by the Girl Guides Association of Victoria in 1934. The rights to the winning song in this competition were to be sold to raise money for a camping ground (which became Britannia Park). The first performance of the song was at a Girl Guides jamboree in 1934, held at Frankston in Victoria, to which the Baden-Powells (founders of the Guiding and Scouting movements) also came.
Fast forward 54 years … Marion Sinclair died in 1988, when publishing rights to the song passed to Larrikin Music.
Meanwhile, in 1979 and 1981, an Aussie band called Men at Work had written and performed a song called Down Under. The song became very popular, gaining heaps of airtime on many radio stations.
And for many of us who remember the 80s, Down Under became almost as much an Aussie icon as the Kookaburra song we learned at school. :)
Simple so far, yes? But here’s where things get more complicated …
Warren Fahey (founder of Larrikin Records) sold Larrikin Music to Music Sales Corporation in 1988 and Larrikin Records to Festival Music in 1995.
Remember that the Kookaburra song was written in 1932, and publication rights passed to Larrikin Records in 1988.
Well, in 2009 … 21 years later! … Larrikin Records decided to sue Men at Work for using a flute riff in Down Under that came from the Kookaburra song. (Listen to the comparison.) As compensation, the record company sought 65% of the band’s earnings from the song Down Under – retrospectively.
I’m sure many others who heard about this at that time will have thought as I did, ‘Yeah, right … fat chance!’
So it was a shock when I discovered that, after a several hearings, findings and appeals – and much legal argy-bargy to and fro – a final court decision was handed down ten days ago on 6 July in favour of the plaintiff!
Although the court awarded Larrikin Records only 2% of Men at Work’s earnings from Down Under and retrospectively only back to 2002, the decision has appalled many people – as any Google search on the subject will demonstrate.
Even Warren Fahey, originator of Larrikin Records, finally spoke out against that decision, arguing that the “Kookaburra song” had essentially passed into the public domain.
Did Men at Work actually use the riff from the Kookaburra Song in Down Under? Yes – that’s really no longer in dispute.
But that Larrikin Records took more than 20 years to discover the fact and decide to sue? That does beggar disbelief. So is this controversial case an example of grasping greed on their part? It would certainly appear to be!
If you’re planning to include a rendition of Kookaburra Sits in the Old Gum Tree in your next school or community concert, I wouldn’t worry too much about it though. I doubt Larrikin Records will think it worthwhile to come after a percentage of your ticket sales! :)
So laugh, kookaburra, laugh …
It’s a funny old world we live in!
Well we’ve now seen the results of this. RIP Greg Ham. While it looks like he was a somewhat troubled soul (as with a lot of talented musicians) my opinion is that the pondscum that launched this totally opportunistic lawsuit bear a significant amount of responsibility.
I hope Larrikan and their legal team sleep well tonight following the death of Greg Ham who was forced to sell his house over the flute riff. Greg always claimed that it was not plagiarised and was certainly troubled by the inadvertant similiarity. Thanks Larrikan
Hang your head in shame Larrikin Records, greed =death
I really hate it when judges wade-in to the murky waters of the arts and profess to know something about them. I thought it was pretty bad when companies started copywriting words (the Optus ‘Yes’) and colours (Coca-Cola ‘Red’) but when you can copyright a sequence of notes and sue an artist even when the time signature or harmonics or texture or mood or concept are completely different then all it can be is a set-back to the arts and culture. Larrikin records are certainly cads and the judge is a complete enemy to humanity.
Thank you for your comments, everyone – and I certainly agree that this court case is a particularly shameful piece of our music history in Australia. Greg’s life story was often an unhappy one, including a battle with addiction. But this court case proved especially devastating for an already troubled soul … quite apart from the financial distress it brought with it. As Colin Hay said “It was appalling in its opportunism and appalling in its greed”.