Men At Work had two number one singles in the USEMI Music is appealing against a court ruling that found Australian band Men at Work plagiarised a Girl Guides’ song in their 1983 hit Down Under.
Papers filed with the Federal Court in Sydney listed 14 grounds for appeal and stated songwriters Colin Hay and Ron Strykert did not breach copyright.
It said similarities may be noted only by a “highly educated musical ear”.
Larrikin Music claimed the flute riff was stolen from Marion Sinclair’s Kookaburra Sits in the Old Gum Tree.
Earlier this month, Federal Court Justice Peter Jacobson ruled that there was “a sufficient degree of objective similarity” between the songs.
A costs hearing is set to take place in late February, with Larrikin seeking 40%-60% of earnings from Hay and Strykert, and record companies Sony BMG Music Entertainment and EMI Songs Australia.
Written by Australian teacher Marion Sinclair more than 70 years ago, Kookaburra Sits in the Old Gum Tree has since been sung by generations of Australian schoolchildren.
EMI Music said the inclusion of the melody was, at most, a form of tribute to the tune.
In its appeal, EMI also argued that the Girl Guides Association of Victoria state actually owned the copyright, as they sponsored the 1934 Girl Guides song competition for which the song was written.
Larrikin Music, which is owned by London’s Music Sales Group, bought the rights to the classic folk song in 1990, following Sinclair’s death in 1988.
“It’s earned a hell of a lot of money for us since we’ve bought it,” Larrikin Music’s Norm Lurie told the Australian newspaper The Age, following the ruling.
Songwriter Colin Hay has called any reference to Sinclair’s folk song “inadvertent, naive, unconscious”.
“By the time Men At Work had recorded the song, it had become unrecognisable,” he wrote in a statement, earlier this month.
Down Under – the story of an Australian backpacker touring the world – reached number one in Australia, the US and the UK, and remains a popular favourite at national events.