Up a gum tree

Georgia Lewis deplores a plagiarism suit that pitches two songs from the soul of Australia against each other.

The first time I heard Land Down Under I was seven years old, and it was being played non-stop on the radio to celebrate Australia's winning of the 1983 America's Cup in a rather unimaginatively named yacht called Australia II. Living in the inland city of Wagga Wagga, New South Wales, I had never been on a yacht in my life, but the excitement of the occasion was infectious. It was an innocent time, when the sight of Bob Hawke, the Australian prime minister, jubilantly wearing a blazer festooned with the Australian flag on breakfast television made people giddy with national pride. These days such a sight would be more likely to lead the politically correct to sip macchiatos while questioning the presence of the Union Jack on the flag.

Land Down Under, recorded in 1981 by Men At Work, was part of the soundtrack of that era and it has made a fortune in sales and royalties. Rightly so. Any song that rhymes "language" with "Vegemite sandwich" deserves to do well. As an Australian expatriate a long way from Wagga Wagga, I find it is the strains of Land Down Under that make me instantly homesick rather than the sheep-stealing antics of Waltzing Matilda, culminating in an unfortunate drowning, or Advance Australia Fair, the dirge-like national anthem.

But now the riches the song's writers, Colin Hay and Rod Strykert, along with Sony-BMG records and EMI-Australia, have accumulated from Land Down Under are under threat because Larrikin Records, a record company, reckons the song's joyously tootling flute riff plagiarises the Kookaburra Song, a 1934 Girl Guide song ("Kookaburra sits in the old gum tree"), to which it owns the rights. Never mind that when Marion Sinclair wrote the song, the members of Men At Work had not yet been born. Never mind that Sinclair was still alive and made no fuss when Land Down Under was released. Never mind that when she sold the rights to Larrikin Records in 1987, nobody felt the need to sue Men At Work.

No, it wasn't until 2007, a full 26 years after the song was recorded and 20 years after Sinclair died at the age of 93, that Larrikin thought it might have a nice little earner on its hands, after a 2007 episode of the popular ABC Television music game show, Spicks and Specks, featured a segment where the possibility of a similarity between Land Down Under's flute riff and Kookaburra was explored. By the end of the episode, nobody on the discussion panel had conclusively declared that Men At Work had ripped off the Aussie school assembly classic, and it was agreed that it was a pretty tenuous claim to make.

The flute riff and Kookaburra have a different pitch, tempo and melodic shape, but Larrikin Records, whose lawyers by now had no doubt figured out how much money had been made from the song, decided to pounce with a legal suit claiming plagiarism. Despite the technical dissimilarities, Larrikin's case was helped by the fact that Men At Work had on occasion tossed Kookaburra into performances of Land Down Under. The band thought they were having a bit of a giggle, switching into a primary school song in the middle of one that covers such topics as throwing up, mysterious women and dens of vice in India.

They're probably not laughing too heartily now with the Australian Federal Court ruling that Men At Work did indeed plagiarise Kookaburra and Larrikin Records is demanding up to 60 per cent of royalties. Larrikin claims this is a victory for the underdog. An underdog that waited 25 years for the royalties to build up nicely. An underdog that was rescued from being a niche, all-Australian label when it was sold in 1995 to the much bigger deal that is Festival Mushroom Records.

Sure, Larrikin started life back in 1974 as a label devoted to nothing but Australian music but, like many an independent operation, economic realities meant it made financial sense to be swallowed up by a large corporation. Creative endeavours are seldom 100 per cent original and musicians are always going to be influenced, either consciously or subconsciously, by what has come before. There were rumours of an out-of-court settlement, but Queen and David Bowie never took legal action against the rapper Vanilla Ice for his blatant sampling of their 1980 hit Under Pressure in the asinine 1992 track Ice Ice Baby. Indeed, the band was magnanimous enough to comment, without a hint of bitterness, in the liner notes of their compilation album Classic Queen that their bass and piano work appeared in Vanilla Ice's hit.

Past plagiarism court cases often smack of a smaller artist or company wanting to cash in on someone else's success. The little-known band Killing Jokes tried to sue Nirvana over a riff in Come as You Are but sheepishly dropped the case after Kurt Cobain's death. However, sometimes the underdog wins, although this is no guarantee of fame and fortune. In 2005, Madonna was successfully sued in Belgium by the Belgian songwriter Salvatore Acquaviva over claims that her 1998 hit Frozen plagiarised his early-1980s song Ma Vie Fout L'camp. Instead of awarding damages, the judge ordered that any remaining discs be taken off sale and banned the song from being played on Belgian radio.

If Larrikin prevails in the appeal, it's not going to look particularly big or clever for denuding Men At Work of royalties over a Girl Guide ditty. Whatever the outcome, one thing is certain: almost every Australian who lived through the 1980s will continue to identify Land Down Under with Men At Work, while the dear departed Marion Sinclair will continue to be about as famous as Salvatore Acquaviva. This, I suspect, would probably be fine by her.