Record company EMI lodged an appeal Thursday against a court ruling that the Australian band Men at Work copied a flute melody from a children’s campfire song in their 1980s hit “Down Under.”
EMI filed papers with the Federal Court in Sydney listing 14 grounds for appeal and saying that songwriters Colin Hay and Ron Strykert did not breach copyright in the song.
EMI said similarities to two bars of the song “Kookaburra Sits in the Old Gum Tree” might be noticed by “the highly sensitized or educated musical ear” but were unlikely to be noticed by the ordinary listener.
The company said the inclusion of the melody was at most a form of tribute to the tune written more than 70 years ago by Australian teacher Marion Sinclair for a Girl Guides competition.
Earlier this month Federal Court Justice Peter Jacobson ruled that the famous flute riff from “Down Under” had “a sufficient degree of objective similarity” to parts of the children’s tune.
Publishing company Larrikin Music, which holds the copyright for “Kookaburra,” is seeking millions of dollars in royalties from EMI and the songwriters.
EMI also argued in its appeal that the Girl Guides Association of Victoria state actually owned the copyright, as they sponsored the 1934 song competition.A date has not been set for the appeal to be heard.
“Down Under” and the album “Business As Usual” topped the Australian, American and British charts in early 1983. The song remains an unofficial anthem for Australia and was ranked fourth in a 2001 music industry survey of the best Australian songs. Men at Work won the 1983 Grammy Award for Best New Artist.
“Kookaburra,” about an Australian native bird, is a campfire favorite from New Zealand to Canada.