In 2007, on the
ABC-TV quiz show
Spicks and Specks, the question was posed, "Name the Australian nursery rhyme this riff has been based on, as well as the name of the man playing it?" The answer, "
Kookaburra", a song whose rights were owned by
Larrikin Music, resulted in phone calls and emails to Larrikin the next day. Larrikin Music subsequently decided to take legal action against Hay and Strykert, the song's writers. Sections of the flute part of the recording of the song were found to be based on "Kookaburra", written in 1932 by Marion Sinclair. In fact, producer Peter McIan remembered the inclusion of the melody being a "musical joke" by flautist
Greg Ham – he can even be seen sitting on a
gum tree in the song's music video while playing the riff. Sinclair died in 1988 and the rights to "Kookaburra" were deemed to have been transferred to publisher Larrikin Music on 21 March 1990. In the United States, the rights are administered by
Music Sales Corporation in
New York City. In June 2009, 28 years after the release of the recording, Larrikin Music sued Men at Work for copyright infringement, alleging that part of the flute riff of "Down Under" was copied from "Kookaburra". The counsel for the band's record label and publishing company (
Sony BMG Music Entertainment and
EMI Songs Australia) claimed that, based on the agreement under which the song was written, the copyright was actually held by the
Girl Guides Association. On 30 July, Justice Peter Jacobson of the
Federal Court of Australia made a preliminary ruling that Larrikin did own copyright on the song, but the issue of whether or not Hay and Strykert had plagiarised the riff was set aside to be determined at a later date. On 4 February 2010, Jacobson ruled that Larrikin's copyright had been infringed because "Down Under" reproduced "a substantial part of 'Kookaburra. When asked how much Larrikin would be seeking in damages, Larrikin's lawyer Adam Simpson replied: "anything from what we've claimed, which is between 40 and 60 per cent, and what they suggest, which is considerably less." In court, Larrikin's principal Norman Lurie gave the opinion that, had the parties negotiated a licence at the outset as willing parties, the
royalties would have been between 25 and 50 per cent. On 6 July 2010, Jacobson handed down a decision that Larrikin receive 5% of royalties from 2002. In October 2011, the band lost its final court bid when the
High Court of Australia refused to hear an appeal. Until this high-profile case, the standing of "Kookaburra" as a traditional song, combined with the lack of visible policing of the song's rights by its composer, had led to the general public perception that the song was within the
public domain. The revelation of the copyright status of "Kookaburra", and more so the pursuit of royalties from it, has generated a negative response among sections of the Australian public. In response to unsourced speculation of a Welsh connection, Rhidian Griffiths pointed out that the Welsh words to the tune were published in 1989, and musicologist
Phyllis Kinney stated neither the song's metre nor its lines were typical Welsh. The story of the lawsuit was featured on
Tim Harford's podcast, Cautionary Tales: The Nursery Rhyme That Ruined a Rock Band. == Use at protest events ==