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.

This book contains hundreds of quotations that go unacknowledged in the body of the text. I’m trying to regain a freedomthat writers from Montaigne to Burroughs took for granted and that we have lost. Your uncertainty about whose words you’ve just read is not a bug but a feature.

A major focus of Reality Hunger is appropriation and plagiarism and what these terms mean. I can hardly treat the topic deeply without engaging in it. That would be like writing a book about lying and not being permitted to lie in it. Or writing a book about destroying capitalism, but being told it can’t be published because it might harm the publishing industry.

Mr. Shields, of course, is not original. Just check out Jonathan Lethem’ s essay “The Ecstasy of Influence: A Plagiarism.”

Or my piece, wholly indebted to Lethem,  entitled “Appropriation.”

Or David Markson, in Vanishing Point (at page 12): “Nonlinear. Discontinuous. Collage-like. An assemblage. As is already more than self-evident.”

But now, as Celebrity Justice (among others) reports, “[a]fter a 3 year fight, a federal court in Australia has ruled against favorite sons Men At Work saying they plagiarized one portion of the Kookaburra tune and will now owe some of their royalties to the publishing group who bought the rights to that song in 1990.”

As CNN reports, the judge in his decision wrote that “I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the ‘hook’ of that song.”

Whether the judge’s decision will withstand appeal under Australian copyright law is beyond my expertise, but the suggestion that the quotation of a copyrighted song in a new work constitutes copyright infringement would make a travesty of the notion of fair use under U.S. law. My zealousness on this question is not merely the result of the argument that I made in my November post — that the “transformative” nature of Men Down Under is proven by the way it alters the melody it takes from Kookabura and the failure of anyone to recognize the borrowing for 29 years. It is also because that being able to “quote” works that have resonance and meaning in our culture is fundamental to artistic creation. Kookabura is fundamental to Men Down Under as a song because Men Down Under, from its title to its performers to its lyric to its video is about Australia, and the use of a musical phrase from Kookabura is as resonant a way to convey Australia as there is.

Instead of recognizing what Lewis Hyde calls the “Cultural Commons,” many people have the knee-jerk impulse people have to identify cultural creations as “property” and thereby equate them to real estate or cars or something. Beside the rather large fact that property rights are limited in all sorts of ways in order to advance social goals (you can’t have a pig farm in the middle of a suburb, you can’t paint your house fuschia in most places, and the government can take your property if it pays you a fair (and rather low) price for it, etc.), that knee-jerk reaction entirely ignores how cultural creations draw (and must draw) on existing cultural creations, and how those creations then achieve meaning in the social sphere and are used to convey meaning in the social sphere. Copyright exists to feed, not hinder, creation, and the sooner we under what creativity really involves the more creative a culture we’ll have.

You be the judge: are Men at Work plagiarists or composers?

It takes a thousand men to invent a telegraph, or a steam engine, or a phonograph, or a photograph, or a telephone, or any other Important thing–and the last man gets the credit and we forget the others. He added his little mite–that is all he did.

- letter to Anne Macy. Reprinted in Anne Sullivan Macy, The Story Behind Helen Keller (Garden City, N.Y.: Doubleday, Doran, and Co., 1933), p.162.