Men at Work ordered to pay 5 percent for lifting riff

Men at Work, the Australian band that won a Grammy award in 1983, must pay 5 percent of the royalties collected on their hit "Down Under" for having used a flute riff from a 1934 song "Kookaburra Sits in The Old Gum Tree."

Australian Federal Court Judge Peter Jacobson in Sydney, who ruled in February that "Down Under" infringed the copyright of "Kookaburra," rejected Larrikin Music Publishing Pty's claim for as much as half the royalties the band earned from the song.

"The sample of Kookaburra is not an immediately recognizable part of the 1981 recording," Jacobson wrote in his 39-page ruling. "To most listeners the similarity can only be heard after this is pointed out to them."

"Down Under" topped the charts in the U.S. and U.K., according to Billboard, and was the theme song for the victorious Australia II yacht team in the America's Cup in 1983, the year the band won the Grammy for Best New Artist.

It celebrates Australia as a land where beer flows and "women glow" and remains a favorite on jukeboxes more than 25 years later.

Published first in 1979, "Down Under" gained popularity following a 1981 recording that added the flute riff, which the judge found had been lifted from "Kookaburra." Both "Kookaburra" and "Down Under" are "iconic" in nature, the judge said.

Misrepresentations

EMI Music Publishing Australia Pty, the song publisher, was also a defendant in the suit. EMI is owned by Terra Firma Capital Partners Ltd., a private equity firm.

John Anderson, managing director of EMI Music Publishing and Adam Simpson, Larrikin's lawyer, didn't immediately respond to a request for comment.

The damages weren't awarded for copyright infringement, rather because of misrepresentations made to the Australasian Performing Rights Association and the Australasian Mechanical Copyright Owners Society, Jacobson wrote.

The misrepresentations were that "Down Under" didn't infringe the copyright of any other work and that the composers and publishers were entitled to all of the income from the song, the judge said.