Kookaburra Song Lawsuit

Absurd!:

Think of Australia. Now think of a tune. "Waltzing Matilda" probably comes to mind. So might the popular nursery tune "The Kookaburra Song." Then there's Men at Work's "Down Under." That major international pop hit and "The Kookaburra Song" now reside at the center of a fierce intellectual-property battle raging in Australia. The copyright holder of "The Kookaburra Song" says it's unlawfully sampled in "Down Under."

So why is such an old pop hit, one that dates all the way back to 1981, suddenly the center of such controversy?

"Most Australians think it's a bit of a joke," says Matthew Westwood, arts editor of the newspaper The Australian. He says contestants on an Australian-music-themed TV quiz show called Spicks and Specks were asked to guess what children's song "Down Under" contained. No one could figure it out, at first. (Neither could I. Westwood had to show me, by playing the song and humming along.)

But after the TV show aired, Larrikin Music Publishing filed suit against Colin Hay and Ron Strykert — the two Men at Work members who wrote "Down Under" — and their former record label. A number of Australians, including Westwood, found this a bit much.

"It's an imaginative reusing of a well-known song that's almost a folk song in Australia," Westwood says.

Westwood says he sees sampling, and reusing musical motifs, as part of a long tradition of legitimate artistic license.

"The Kookaburra Song" was originally written by a Melbourne schoolteacher named Marion Sinclair in 1934, for the Australian version of the Girl Scouts. Westwood says the tune is onomatopoeic, in that it almost captures the sound of the kookaburra laughing.

"It's a very typical Australian sound — a bush sound," Westwood says. "That's why I think it's really mean-spirited to say, 'Hey, this is theft,' if it's something that comes from nature."

You'll hear no such romanticizing from Adam Simpson of Simpson Solicitors, who represents Larrikin Music Publishing in the lawsuit.

" 'Kookaburra' is a copyright work, just like any copyright work, and there are laws surrounding how it can be used," Simpson says.

Simpson says laws governing what we'd call fair use in the U.S. for sampling music are more restrictive in Australia. He argues that "The Kookaburra Song" appears significantly in "Down Under."

" 'Kookaburra' is a four-bar song," Simpson says. "Over half that song is used in 'Down Under,' which is the test of law."