Record company EMI has appealed against a court ruling that Australian band Men at Work ripped off a popular Australian folk tune with their 1980s smash hit Down Under.
The company filed papers with the Federal Court in Sydney on Thursday listing 14 grounds and seeking orders that songwriters Colin Hay and Ron Strykert did not breach copyright with their work.
It argued the inclusion of two bars from the popular children's tune Kookaburra Sits in the Old Gum Tree was at most a form of tribute to the tune penned more than 75 years ago by Toorak teacher Marion Sinclair.
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In such circumstances, EMI said the similarities "might be amusing or of interest to the highly sensitised or educated musical ear" but were otherwise unlikely to be noticed "by the ordinary listener".
'Sufficient degree of similarity'
Earlier this month Federal Court Justice Peter Jacobson ruled the famous flute riff from the Aussie band's hit record was unmistakably the same as Kookaburra, the tune penned for a girl guides competition.
"In my opinion, there is a sufficient degree of objective similarity between the bars of Kookaburra which are seen and heard in Down Under to amount to a reproduction of a part of Miss Sinclair's round," Justice Jacobson said.
"Mr Hay's performance of the words of Kookaburra shows that a substantial part was taken."
The ruling left Kookaburra's copyright owners, Larrikin Music, poised to claim millions of dollars in unpaid royalties from EMI and Down Under songwriters Hay and Strykert.
Larrikin Music's lawyer Adam Simpson said they might be forced to hand over as much as 60 per cent of their earnings from the international hit record.
But, in its appeal, EMI said the trial judge had erred in contending that Down Under had taken a substantial part of the Kookaburra tune and that had placed insufficient weight on the fact that the similarities between the two had gone unnoticed for many years.
The company also argued that the judge was wrong in finding that Ms Sinclair had not assigned the copyright to Kookaburra to the Girl Guides Association of Victoria in 1934 in the course of entering the song competition.
The appeal will be heard on a date to be fixed.
