Down Under: a kookaburra gummed up the works of an Aussie anthem

Men at Work’s Down Under, a worldwide hit in the 1980s, lost a copyright case because of its famous flute riff.

FILE - Members of "Men at Work" pose with their Grammy for best new artist at the awards show in Los Angeles in ...

In 1934, Robert Baden-Powell, the founder of the scouts and guides’ movement, paid a visit to Wesburn, a rural hamlet 65km east of Melbourne, in the foothills of the Yarra Ranges.

While there for the international scout jamboree, Baden-Powell heard a performance of a song that had won a fundraising competition for a local guides’ camping ground.

That song, Kookaburra Sits in the Old Gum Tree, was written by 34-year-old schoolteacher and guides veteran Marion Sinclair, who was inspired by the musical “rounds” popular in guiding.

With its repetitive words and simple melody, the song was taken by scouts and guides back to New Zealand, the US, India, Britain and South Africa.

It settled into being a folk song known by many and, they thought, partly owned by them.

And there it remained, a loved and well-worn rhyme resting unobtrusively like an old chair in the sunroom, until 2007 and TV music game show Spicks and Specks.

Host Adam Hills played a flute riff and asked panellists to name the Australian nursery rhyme it was based on. The music experts identified Men At Work’s Down Under and flautist Greg Ham but were further stumped. But it rang a bell with Play School presenter Jay Laga’aia, from New Zealand, where Sinclair’s ditty had been sung for decades. He reckoned it might be the Kookaburra song. The show moved on and the moment appeared forgotten.

But not by Larrikin Music Publishing, which owned the rights to Sinclair’s song, purchased for about $6000.

It was the company’s right to enforce its copyright and, despite never before making the connection with Men At Work, it sought legal action to remedy what it saw, belatedly, as plagiarism.

Others saw it as opportunism. Rock music, like jazz, endlessly reinvents a good idea: Rock Around the Clock is a modernised version of Hank Williams’s Move It On Over ; many believe that Ian Anderson’s song We Used To Know, by his band Jethro Tull, was turned into the Eagles’ Hotel California.

Ham’s flute is not integral to Down Under, as co-author Colin Hay illustrated to me in 2009 by recording the song with just his voice and guitar. The result is a simpler Down Under, but clearly the song we know and love. It was recorded and released in that original form before Ham augmented it for the Business As Usual album. The idea for what became Down Under took shape in suburban Hawthorn, in Melbourne’s east, in 1978. Ron Strykert started the ball rolling. “I was working with Ron, and he used to do little home tapes and he had a tape that had a little bass riff and percussion thing and it was really hypnotic,” Hay said.

“And I had this thing in my head for a few weeks and all it was was (sings) ‘living in a land down under’. That was it. All I had. And one day I was playing this tape that Ron had and I connected the two and felt very excited and then went home the next day and wrote the whole thing out.”

Hay said everyone had such a strong interpretation of the song’s meaning.

“The choruses were really about the death of the spirit of this place, my fear of the over-corporatisation of this country, which I think has happened and will continue to happen and is inevitable, perhaps,” he said.

Hay was angry about Larrikin’s legal action. “There was no theft. None.”

The Federal Court found otherwise, ruling that the song’s authors and EMI had copied a substantial part of Kookaburra, had infringed Larrikin’s copyright and misrepresented the work as their own. An appeal failed and Larrikin was awarded a share in the royalties.

It deeply distressed the respected, personable and usually humorous Ham, who feared he’d be known as the bloke who “ripped off” Kookaburra. One of the people Ham confided in was folklorist Warren Fahey, Larrikin pioneer who had sold his interest.

Fahey’s name is inextricably linked to that of Larrikin but he had nothing to do with the legal action. Fahey had never owned the song and opposed the writ.

“(Marion Sinclair) must have known about Down Under but she didn’t take any action,” Fahey says today. Despite being a welfare recipient in her later years, Fahey says she never sought royalties.

When Ham was found dead at his modest home in Carlton, Melbourne in April 2012, friends and fans blamed Larrikin. Some mistakenly blamed Fahey. He still receives emails demanding “why did you kill Greg Ham?”

“It shows me the power of (Down Under), and how the public relate to the song, how they are tied in with that story,” Fahey said this week. “That song triggers emotions in people.”

The night Hay was given news of Ham’s death he was about to go on stage in Baltimore. He was distressed and tearful. “He’ll be playing with me tonight,” said the man going back to work.

Laugh, kookaburra, laugh? He’d have wept.