Men At Work will have to dig a little deeper after the Federal Court ruled Thursday (Feb. 4) that the Australian pop giants had lifted a riff in "Down Under" from another song.

A Federal Court judge found that Men At Work's memorable song had reproduced a "substantial part" of the children's campfire anthem "Kookaburra Sits In The Old Gum Tree", infringing copyright in the work.

Judge Peter Jacobson said Sydney-based publisher Larrikin Music Publishing, a division of the U.K.'s Music Sales, could now recover damages from Men At Work's songwriters Colin Hay and Ron Strykert, and the band's record label.

"I have come to the view that the 1979 recording and the 1981 recording of 'Down Under' infringe Larrikin's copyright in Kookaburra because both of those recordings reproduce a substantial part of Kookaburra," Jacobson told the court today.

Larrikin Music launched compensation proceedings in 2008 against Hay and Strykert, EMI Songs Australia Pty Ltd and EMI Music Publishing Australia Pty Ltd, claiming the flute refrain in "Down Under" was grabbed from "Kookaburra," written in the 1930s by music teacher Marion Sinclair, a life-long supporter of the Girl Guide movement. Other defendants to the litigation had included Sony Music, and societies APRA and AMCOS. However, confidential settlements were subsequently reached with those parties.

Later, in July 2009, the Federal Court sided with Larrikin on the music publisher's claims to own the copyright to "Kookaburra," having won a tender for the work in 1990, after Sinclair had passed away.

"It's a victory for the underdog," Adam Simpson, partner of Sydney-based Simpsons Solicitors, lawyer for Larrikin, tells Billboard.biz. "We're quietly happy with the result overall and are considering the judgment further."

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 "Business As Usual," respectively. "Down Under" is a favorite with Australians everywhere, and is regarded in these parts as an unofficial national anthem, particularly during sporting occasions. The song is synonymous with the country's successful bid to win the America's Cup yacht race in 1983, and the band reunited to perform their big hit during the closing ceremony of the Sydney 2000 Olympic Games.

The parties will meet again on Feb. 25 to begin talks on damages. Larrikin argues that damages in the region of 40% and 60% of royalties accrued by "Down Under" is "fair."

"Just how much 'Down Under' has earned remains to be seen," adds Simpson. An appeal from either side remains possible.

Andy Millmore, head of litigation at London media and entertainment law firm Harbottle & Lewis, commented: "I doubt very much that they will be expected to pay back royalties attributable to the period before the last six years given general legal limitation of action principles.

"However, this is a very famous tune, used in a lot of advertising campaigns, so future earnings could still be considerable. And what is troubling is that it's another example of an action not even brought for nearly 30 years after the release of the infringing track."

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