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Colin Hay at the 2009 APRA Awards, Melbourne Australia
Photo by Ros O'Gorman

Colin Hay Calls Kookaburra Ruling Opportunistic Greed

By Paul Cashmere
Sun, 07 Feb 2010 05:43:48 +1100

Men At Work singer and co-writer of `Down Under` has called the legal battle over his song Vs. `Kookaburra Sitting In An Old Gum Tree` opportunistic greed.

In a statement following the ruling against Hay and co-writer Ron Strykert, Colin points out that the writer of the Kookaburra song Marion Sinclair was alive when ‘Down Under’ came out and never questioned.

This week Judge Jacobsen, without a jury, ruled in favour of the new copyright owners over Hay and Strykert.

Hay points out that the decision will have “lasting repercussions, and I suspect not for the better”.

Read what he had to say here:

For Those Interested,

The song Down Under is my friend. It has always been my friend, ever since it was born. I have been playing it for over 30 years, to audiences the world over, and will no doubt play it for as long as I am able. We look after each other very well. I co-wrote this song known as Down Under, with Ron Strykert, sometime in the winter of 1978. I remember because we had played the song at the Cricketers Arms Hotel in Richmond one Thursday night, and on the way home to Arthur's Creek, just north of Melbourne, with Ron and my girlfriend Linda in the car, I fell asleep at the wheel, and ran off the road into a ditch. We ended up with the car pointing toward the sky, and we found ourselves staring through the condensation streaked windscreen at the stars above. It was cold, very cold, you know that two o' clock in the morning Melbourne cold, the kind that chills your bones.

The Federal Court ruling of Justice Jacobson regarding Down Under, and Marion Sinclair's song Kookaburra Sits In The Old Gum Tree, came down today. I am as we speak, wading through the 60 page document of his ruling. Clearly, I've had better days.

The copyright of Kookaburra is owned and controlled by Larrikin Music Publishing, more specifically by a man named Norm Lurie. Larrikin Music Publishing is owned by a multi-national corporation called Music Sales.

I only mention this as Mr Lurie is always banging on about how he's the underdog, the little guy. Yet, he is part of a multi-national corporation just like EMI Music Publishing. It's all about money, make no mistake. He litigated against EMI Music Publishing, who controls the copyright of Down Under, and Ron Strykert and myself, the writers of Down Under. He alleged that we appropriated a "substantial" part of Kookaburra, and in so doing, infringed upon that copyright, and incorporated it into the flute line of Men At Work's recording of Down Under. It is indeed true, that Greg Ham, (not a writer of the song) unconsciously referenced two bars of Kookaburra on the flute, during live shows after he joined the band in 1979, and it did end up in the Men At Work recording. What's interesting to me, is that Mr Lurie is making a claim to share in the copyright of a song, namely Down Under, which was created and existed for at least a year before Men At Work recorded it. I stand by my claim that the two appropriated bars of Kookaburra were always part of the Men At Work "arrangement", of the already existing work and not the "composition".

When Men At Work released the song Down Under through CBS Records, (now Sony Music), in 1982, it became extremely successful. It was and continues to be, played literally millions of times all over the world, and it is no surprise that in over twenty years, no one noticed the reference to Kookaburra. There are reasons for this. It was inadvertent, naive, unconscious, and by the time Men At Work recorded the song, it had become unrecognizable. It is also unrecognizable for many reasons. Kookaburra is written as a round in a major key, and the Men At Work version of Down Under is played with a reggae influenced "feel" in a minor key. This difference alone creates a completely different listening experience. The two bars in question had become part of a four bar flute part, thereby unconsciously creating a new musical "sentence" harmonically, and in so doing, completely changed the musical context of the line in question, and became part of the instrumentation of Men At Work's arrangement of Down Under.

Justice Jacobson has ruled, and for the most part, not in EMI's or my favour. What was born out of creative musical expression, became both a technical and mathematical argument. This ruling will have lasting repercussions, and I suspect not for the better.

Mr Lurie is a music publisher, and today Judge Jacobson ruled mostly in his favor. Mr Lurie claims to care only about protecting the copyright of Marion Sinclair, who sadly has passed away. I don't believe him. It may well be noted, that Marion Sinclair herself never made any claim that we had appropriated any part of her song Kookaburra, and she wrote it, and was most definitely alive, when Men At Work's version of Down Under was a big hit. Apparently she didn't notice either.

I believe what has won today is opportunistic greed, and what has suffered, is creative musical endeavor. This outcome will have no real impact upon the relationship that I have with our song Down Under, for we are connected forever. When I co-wrote Down Under back in 1978, I appropriated nothing from anyone else's song. There was no Men At Work, there was no flute, yet the song existed. That's the truth of it, because I was there, Norm Lurie was not, and neither was Justice Jacobson. Down Under lives in my heart, and may perhaps live in yours. I claim it, and will continue to play it, for as long as you want to hear it.

Sincerely, Colin Hay
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