Cuckoo Kookabura Continues

The travesty continues — first, there was the court decision in Australia finding Men at Work liable for copyright infringement for appropriating a riff from the Australian chestnut Kookaburra Sits in the Old Gum Tree in their 1981 #1 hit Down Under. Now the judge has ordered the group to pay 5 percent of the royalties it earned from the song. I suppose it’s better than the 60% the publishing company that owns the copyright sought. Kookaburra, incidentally, was composed over 70 years ago, and its composer died 22 years ago. It doesn’t appear, in short, that the copyright here is serving to motivate creation; rather, it’s serving as a disincentive – Down Under stood on its own as an Australian anthem. As Wikipedia reports:

The song is a perennial favourite on Australian radio and television, and topped the charts in the U.S. and U.K. simultaneously in early 1983. It was later used as a theme song by the crew of Australia II in their successful bid to win the America’s Cup in 1983.[citation needed] Men at Work played this song in the closing ceremony of the 2000 Sydney Olympics, alongside other Australian artists. It was also often played after Australian athletes had received medals during competition, as they walked around the venue on a parade lap after the medal ceremony.

In May 2001, Australasian Performing Rights Association (APRA) celebrated its 75th anniversary by naming the Best Australian Songs of all time, as decided by a 100 strong industry panel, “Down Under” was ranked as the fourth song on the list.[5]

In October 2006, Triple M had the Essential 2006 Countdown of the most popular songs of all time, voted by the listeners. “Down Under” was the number 3 voted/ranked song.[citation needed]

The song was voted #96 on VH1′s 100 Greatest Songs of the 80s.[when?]

The song has been used as the entrance music for various professional Australian sportsmen, including darts player Simon Whitlock, cruiserweight boxer Danny Green (for his fight against Roy Jones, Jr. on 2 December 2009) and snooker player Neil Robertson.

The song was played extensively during the September 2009 One-Day International cricket series between England and Australia, which Australia took by six matches to one.

Moreover, as I’ve previously noted, the Sydney Morning Herald reported that “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

And to the extent the riff is recognizable it is doing what a quotation does in a piece of art — using a culturally resonant symbol to sound that resonance.

At least Men at Work is going to appeal the decision.