Down Under copyright appeal dismissed

Men At Work's Colin Hay. Photo / AAP

The Federal Court has upheld a court ruling that Australian band Men at Work ripped off a popular Australian folk tune in their 1980s hit Down Under.

An appeal by record company EMI was dismissed on Thursday by Justices Arthur Emmett, Jayne Jagot and John Nicholas, who concluded there had been an infringement of copyright of the tune Kookaburra Sits in the Old Gum Tree.

Mark Bamford, a lawyer for EMI and one of the band's songwriters Colin Hay, said the result was disappointing and they would consider their position after reviewing the judgement more closely.

"Perhaps, as his honour Justice Emmett has indicated, if the application of copyright law leads to a result like this, it's time to rethink its modern application," he said.

The record company filed the appeal in February last year, after it was found the famous flute riff from the band's smash hit was unmistakably the same as Kookaburra, penned by Toorak teacher Marion Sinclair more than 75 years ago for a Girl Guides competition.

The result left Kookaburra's copyright owners, Larrikin Music, poised to claim millions of dollars in unpaid royalties from EMI, Mr Hay and fellow Down Under songwriter Ron Strykert.

In July, they were ordered to share in some of the band's profits, but the final sum was considerably less than the 50-to-60 per cent Larrikin hoped for.

A Federal Court judge found that amount was excessive, and ruled the music publisher should receive five per cent of royalties.

EMI had listed 14 grounds for its appeal against the broader decision and sought orders that Mr Hay and Mr Strykert did not breach copyright with their work.

It argued the trial judge had erred in contending that Down Under had taken a substantial part of the Kookaburra tune and had placed insufficient weight on the fact that the similarities between the two songs had gone unnoticed for many years.

Justice Jagot accepted that Kookaburra and Down Under were different genres, "but that does not overcome the fact that the bars of Kookaburra have been borrowed for the flute riff".

Justice Emmett said a four-part round was not capable of copyright protection, however, "the specific melodies or phrases that constitute the expression of the idea will constitute an original musical work".

"I consider that both (Down Under) recordings reproduce a substantial part of Kookaburra. Accordingly, there has been an infringement of copyright," he said.

But the better view, he added, was not that the melody was taken in order to save effort on the part of Down Under's composer, but as a tribute to the iconicity of Kookaburra, and as one of a number of references made in Down Under to Australian icons.

EMI was ordered to pay Larrikin's costs.

-AAP