How A Game Show Nearly Cost 80s Band "Men At Work" Tens Of Millions Of Dollars

By on October 15, 2013 in ArticlesEntertainment

If you follow CelebrityNetWorth on Facebook, you may have noticed that over the last several weeks some of our updates have been posted at strange times from a bunch of different countries all over the world. That's because I am currently in the midst of a month long trip abroad that has taken me from Taiwan to China to Hong Kong to Japan and now finally to the land of Kangaroos, Koalas, Steve Irwin, Crocodile Dundee, Hugh Jackman, Bloomin Onions and of course, Mr. G. And like everyone who visits Australia for the first time, as soon as my plane landed I immediately took out my iPhone and blasted the 80s classic "Down Under" by Men At Work. I've actually had their greatest hits album on shuffle pretty much exclusively for the last five days.


In case you're unfamiliar, "Down Under" was a multi-platinum song released off Men At Work's 1981 debut album "Business as Usual". In addition to increasing Vegemite's worldwide brand awareness by about a billion percent, "Down Under", was a huge factor in that album eventually selling 20 million copies worldwide. It also helped the band win the Best New Artist Grammy. The song was a number one hit Australia, Canada, Ireland, The UK and The US, just to name a few. Down Under's global success would eventually generate a massive fortune for the band through record sales, commercial endorsements, music/film/TV royalties and more.

"Down Under" was such a huge deal that by the mid 80s, it had literally become the unofficial national anthem for Australia. It's hard to properly quantify the song's cultural significance to Australia, but put it this way: When Sydney hosted the 2000 Summer Olympics, guess which band was chosen to play the the closing ceremony in front of an audience of 2.4 billion people? Men At Work. And guess which song Men At Work played for seven minutes on a stage that was jam packed with virtually every major Australian icon of the last 50 years including Greg Norman, Elle Macpherson and Paul Hogan? Down Under.

All of the above accolades make it especially shocking to learn that in 2009, 30 years after the song's initial release, Men At Work faced an absolutely insane copyright lawsuit. The "Down Under" lawsuit involved tens of millions of dollars worth of backdated music royalties, a 70 year old nursery rhyme and an Australian game show. That last sentence was a bit of a mouth-full, but stick with me for a minute because this story is fascinating all the way to the finish line. And to get us going, here is the beloved music video for Down Under… Pay special attention to the flute hook that plays between 10 and 14 seconds:

That flute hook, which can be heard roughly 9 times throughout the song, is central to this article and the 2010 copyright lawsuit. Here's what happened: Back in 2008, an Australian quiz show called "Spicks and Specks" played a snippet of the flute audio and asked contestants "What children's song is contained in the song Down Under?" After a moment of pondering, one of the teams buzzed in and responded "Kookaburra Sits in the Old Gum Tree", which apparently was the correct answer. No big deal, right? Wrong. Whoever came up with that question for "Spicks and Specks" had unintentionally just sparked the fuse which would go on to set off a bitter, multi-million dollar lawsuit that jeopardized millions upon millions of dollars and took nearly three years to resolve.

Immediately after the show aired, a Sydney businessman named Warren Fahey started receiving frantic calls and emails from people who wanted to know if he was aware of the Kookaburra/Down Under connection. Why would Warren Fahey care? At the time, Fahey was the owner and CEO of a company called Larrikin Music, which happened to control the copyright to "Kookaburra Sits in the Old Gum Tree".

"Kookaburra Sits in the Old Gum Tree", also known simply as "Kookaburra" is a popular Australian nursery rhyme, on par with "Old McDonald" in the United States. It was written by a Melbourne music teacher named Marion Sinclair for her Girl Scout troop in 1932. Sinclair wrote the song as part of a Girl Scout contest and over the next several decades it quickly grew into a beloved song for all Australian school children.

Marion Sinclair died in 1988 at the age of 93. During her lifetime, she never demanded any royalties or compensation from her famous creation. Then, two years after Marion's passing, one of her heirs sold the rights to Kookaburra to Warren Fahey's Larrikin Music for the princely sum of $6100. According to Australian Copyright law, copyright for a piece of music lasts for the author's life PLUS 70 years. That meant Larrikin would be eligible to receive any profits generated off Kookaburra from 1990 to the year 2058. Before we move any further, let's listen to the songs compared back to back:

Clearly it's a similar sounding tune. Similar enough that when that game show publicly connected the dots for Larrikin Music, their lawyers immediately filed a copyright suit. Larrikin's lawsuit demanded compensation equal to 40-60% of all the profits ever earned off "Down Under" from music sales, endorsements, royalties, compilations, cover version etc… At the time, music experts estimated that Larrikin's claim could have been worth as little as $20 million and as much as $60 million.

The lawsuit not only targeted Men at Work's record company Sony BMG Music Entertainment, but also the band's two co-founders and principal songwriters Colin Hay (vocals) and Ron Strykert (guitar). Interestingly, neither Hay nor Strykert were even responsible for coming up with the song's famous flute riff. According to deposition given by Colin Hay during the trial, the band's flutist Greg Ham improvised the riff during a random jam session back in 1980. Hay further explained that the entire band was heavily under the influence of marijuana during that particular jam session. Not sure how that was relevant, but it would turn out to be just one small piece of an ever-growing legal ordeal.

The court case officially began in June of 2009. Hay and Strykert's defense was that any similarities between the two riffs were completely unintentional and that, at the most, Kookaburra affected them sub-consciously. Larrikin's claim was that the flute hook, which they believed was a direct infringement of Kookaburra, was responsible for the majority of the song's commercial success. Larrikin even had the nerve to claim that they were fighting for Marion Sinclair's legacy because she died relatively poor in a nursing home while the band was achieving the peak of their success. Meanwhile, Larrikin never exactly discussed giving the potential judgement over to Sinclair's family. It was purely a cash grab for a company that had absolutely nothing to do with the original creation of Down Under and did not even exist back in 1981.


Shockingly, in February of 2010, the judges overseeing the case actually sided against Men At Work. The judgement further confirmed two important points: 1) That Down Under did indeed infringe upon Marion Sinclair's work and 2) Larrikin was the rightful owner of Kookaburra. Based on this ruling, Larrikin did not hesitate to file a motion seeking damages equal to 40-60% of all the profits Down Under had generated since 1981 and would generate going forward. As we mentioned previously, this would have equated to somewhere between $20 and $60 million.

Four months later, the same judges came back with a final decision on damages. The resulting judgement called for Men at Work and their record company to pay Larrikin 5% of all royalties related to Down Under dating back to 2002 (not 1981) and 5% of all royalties going forward until the year 2058. The exact amount wasn't disclosed but we do know that it was a six figure judgement. In other words, greater than $99,999 but less than $999,999. A frustrating result, but still pretty cheap considering what Larrikin was seeking. The band did attempt to appeal one final time in October 2011, but the High Court of Australia refused to hear the case.

To this day, Colin Hay and Ron Strykert insist that the song did not infringe on the copyright of Kookaburra and that any similarities were unintentional. Sadly, Men At Work's flutist Greg Ham passed away in April 2012 just six months after the final judgement was confirmed. Friends and family claim that Ham had been "deeply despondent" for months over the plagiarism verdict. In one of his final interviews, Ham explained that he was "terribly disappointed that that's the way I'm going to be remembered — for copying something". Whether or not these feelings exacerbated his death may never be known. I would like to go on record saying that regardless of any court rulings, Greg Ham and Men At Work should be remembered for creating an iconic song that is still just as catchy and relevant today as it was 30 years ago… A song that I listened to 10 times today and will probably listen to another 10 times tomorrow. Possibly while I eat a Vegemite sandwich.


Articles Written by Brian Warner
Prior to launching Celebrity Net Worth, Brian spent seven years as the Managing Editor of one of the largest entertainment portals on the internet. Before that, Brian attended Georgetown University where he double majored in finance and marketing. A native of Northern California, Brian currently resides in Los Angeles. Follow him on Google+.
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