When Men at Work were sued over the flute part of their giant hit Down Under, it had an adverse effect on the part's creator, Greg Ham, who felt he was losing his heritage.
Friends of Ham confirm that ever since Larrikin sued Men At Work for copyright infringement claiming they stole the flute solo from the Australian evergreen Kookaburra Sits In The Old Gum Tree that Ham became a changed man.
“He took it hard. He was never the same after the case went against them,” one of his friends told Noise11.com.
In February, 2010, Federal Court judge Peter Jacobson ruled in favour of Kookaburra’s current copyright owners Larrikin Music. The decision not only dumbfounded the members of Men At Work but also many (including myself) in the music industry because of the insignificant cross-over of the two songs.
Suddenly, a 30-year old song was deemed to have plagiarised a 75-year old song. If it were so obvious why did it take three decades for anyone to notice?
The answer was because it became a trivia question in the TV game show Spicks and Specks.
Larrikin Music managing director Norm Laurie was the man who started the series of events that finished this week with the death of Greg Ham.
After winning the landmark case, Laurie told The Australian “I think it has been the story of a small independent company standing up for our rights and not being pushed around by a company with very much deeper resources.”
The only trouble was Greg Ham wasn’t “a company with very much deeper resources”. His friends say that riff was his proudest moment.
Larrikin Music bought the copyright for Kookaburra in 1990 after the death of the original songwriter Marion Sinclair in 1988 but even then it was unclear who owned the song.
Melbourne school-teacher Marion wrote the song in 1932 for a Girl Guides competition. Copyright wasn’t a consideration in the 1930s like it is now when the song was written so it was unclear if the Sinclair estate owned the song because Marion wrote it or if the Girl Guides Association of Victoria owned the song because they commissioned the contest it was written for.
In the end, we understand both sides were paid for the copyright just to avoid future legal questioning.
After the hearing I spoke with Men At Work singer Colin Hay who told me, “The feeling that I have in looking back at it was that it was avoidable. The huge cost of litigation for three years was probably avoidable if they came in not wanting 60% of ‘Down Under’ which is a ludicrous amount to want in the first place. In my view it was completely opportunistic. The crux of it is that they claim infringement took place and we didn’t think it did. We still don’t but the judge sided with them. He ultimately awarded them 5% of the Men At Work version of the song. Even though I don’t think infringement did take place if you look at 5% it’s a much more reasonable number than 60% but if someone asks for 60% its not like you can say ‘that’s in the ballpark’. You have to defend it. And while they won I would say it was a hollow victory at best. I would say they lost less than us because there were still huge costs. What they ended up with was something that cost them a lot for relatively little gain”.
Hay said they were roped in and had no choice but to defend. “The more I look at it the more ridiculous it is. But if someone sues you then you have to defend it,” he said.
Colin and Greg were mates well before Men At Work. “I knew Greg before the band. I knew him since 1972 through Kim Gyngell, he was my friend from school. He knew Greg. He had gone to school with Greg and introduced him to me. I knew him years before the band formed. Greg and I were friends,” Colin said.
Ham’s body was discovered at his Canning St, Carlton home just before midday on Thursday. It will be weeks before we know exactly how Greg died but for now Police have ruled out foul play.
