Australian rockers Men at Work lost their final court bid on Friday to prove they did not steal the distinctive flute riff of their 1980s hit "Down Under" from another of the country's most famous songs, the children's campfire staple "Kookaburra Sits in the Old Gum Tree."
The High Court of Australia denied the band's bid to appeal a federal court judge's earlier ruling that the group had copied the flute melody from "Kookaburra," a song about an Australian bird whose call sounds like laughter. But because the lawsuit was filed only two years ago, the band won't have to give up royalties from its heyday.
"Down Under" and the album it was on, "Business As Usual," reached No. 1 on the Australian, American and British charts in 1983, the year Men at Work won the Grammy Award for Best New Artist. The song remains an unofficial anthem for Australia, with lines such as "He just smiled and gave a Vegemite sandwich," a reference to the yeast extract spread that is popular among Australians.
"Kookaburra" was written more than 70 years ago by Australian teacher Marion Sinclair for a Girl Guides competition. The song went on to become a favorite around campfires not just in Australia, but in the United States, Canada and New Zealand.
Sinclair died in 1988, but publishing company Larrikin Music - which now holds the copyright for "Kookaburra" - filed a lawsuit in 2009.
Last year, Federal Court Justice Peter Jacobson ruled that the "Down Under" flute riff replicated a substantial part of Sinclair's song. The judge later ordered Men at Work's recording company, EMI Songs Australia, and "Down Under" songwriters Colin Hay and Ron Strykert to give up 5 percent of future royalties, and of royalties earned since 2002.
The court didn't specify what the 5 percent penalty translates to in dollars. Larrikin wasn't able to seek royalties earned before 2002 because of a statute of limitations.
Lawyers for Men at Work's recording companies maintained that the band hadn't copied anything and had vowed to fight the ruling. But Friday's decision from the High Court ends the band's chance to appeal.
"Larrikin welcomes the decision and looks forward to resolving the remaining issues between the parties," Adam Simpson, a lawyer for Larrikin, said in an email.
Mark Bamford, a lawyer for EMI, called the High Court's decision disappointing.
