EMI has lost its appeal in an Australian court ruling that found Men at Work's 1980s hit "Down Under" was lifted from a campfire folk song.
Last year, Australia's Federal Court found that Men At Work's hit had reproduced a "substantial part" of "Kookaburra Sits In The Old Gum Tree," a Girl Scout anthem represented by Sydney-based Larrikin Music Publishing, a division of the U.K.'s Music Sales.
The case has made headlines around the globe since late 2008, when Larrikin Music Publishing went ahead with proceedings against Men at Work's songwriters Colin Hay and Ron Strykert, EMI Songs Australia and EMI Music Publishing Australia, claiming the flute refrain in "Down Under" infringed its copyright.
Men At Work were subsequently ordered to pay just 5% of royalties from their iconic hit dating back to 2002, plus future royalties. Attorneys for Larrikin had argued that damages in the region of 40% and 60% of royalties accrued by "Down Under" was reasonable.
EMI wanted that original court decision overturned and filed papers in 2010 with the Federal Court, listing 14 grounds for appeal and claiming that Hay and Strykert did not breach copyright.
The music major had argued that the disputed riff was no-more than a tribute to the original work, written in the 1930s by an Australian teacher Marion Sinclair.
But the court didn't see it that way. A three-judge panel today upheld the decision and ordered EMI to pay court costs for the appeal in addition to the royalties it now owes to Larrikin Music, a total sum which could reach well into seven-figures.
Men At Work became members of an elite circle of artists when in 1982 they secured simultaneous No. 1 singles and albums in the U.S. and U.K. with "Down Under" and the longplay it was taken from, "Business As Usual."
"Down Under" is a favorite with Australians everywhere, and is regarded in these parts as an "unofficial" national anthem, particularly during sporting occasions.
In his keynote conversation year at the APRA Song Summit in Sydney, Hay spoke of his "special relationship" with the song, which he told the audience he played every night.
A NYC-based spokesman for EMI Music Publishing could not be reached for comment at deadline.