Rebecca Barry: Kookaburra only one laughing

I could kill Men At Work. Since the story broke that their number one hit Down Under plagiarised a deceased schoolteacher, it has been on high-rotate in my brain.

"Can't you hear, can't you hear the thunder?"

Then the clincher you should definitely heed when you hear that notorious flute line reverberating across the RSA: "You better run, you better take cover."

As for the quaint old ditty, Kookaburra Sits in the Old Gum Tree, penned by that wild rockabilly Marion Sinclair, it's no doubt confined to the dustbin of your frontal lobes, obliterated by thoughts of a strange lady in Europe giving an Australian a free breakfast (listen to Down Under if you don't know what I mean). Kookaburra became a Girl Guides favourite and was sung at campfires around the Lucky Country.

Sinclair never kicked up a stink about that.

Australian judge Peter Jacobsen last week charged Men At Work for plagiarising it. Band member Greg Ham added the flute riff said to copy Sinclair's song, years after Down Under was composed. He admitted the two offending bars were performed live to add a bit of Australian flavour. Because that's what musicians do.

Obviously the sentiment didn't translate well because nobody picked up on it for 20 years. The supposed copyright infringement was nothing more than a vague homage to the classic Aussie tune that ended up on the recording.

It was only in 2007 when someone noticed the similarities on a music game show that Larrikin Music, the self-described "underdogs" who own the publishing rights to Sinclair's song, decided to file a law suit. They won.

Only they're not underdogs. As Hay pointed out in an Australian newspaper, Larrikin is owned by a multinational corporation called Music Sales, a London-based umbrella publishing company that owns the copyright to a huge amount of music in this part of the world, too.

The lawsuit means the band will have to fork out 60 per cent of the song's earnings. It is played some 30 times a day across the ditch so they're in for quite a pay day. But poor old Marion doesn't even factor into the equation because she's been dead for 22 years.

Even if the band successfully appeals against this ridiculous decision, the implication for composers and songwriters is serious. They'll have to be extra careful they're not inadvertently ripping off Buddy Guy when they're mucking around with the blues scale, or plagiarising the Jaws theme tune by repeating an E and an F. Even a playful pastiche is out of the question.

Just about every pop song uses the same chords; thousands use the same chord progressions. Melodies are a little different in that they're so distinctive but didn't Sinclair plagiarise a kookaburra when she came up with the original tune? Music, as with any art, is about interpreting the world we share.

It is inevitably influenced by other music, and therefore moulded into being by things that inspire the musician.

Men At Work have a lot to answer for. But not plagiarism. The song existed before the recording in question. The flute riff is part of the arrangement, not the song. Yes the recording of that performance has gone on to become a hit. But if you want to punish Men At Work, punish them for their lyrics.

Down Under is about an Aussie backpacker who travels around the world encountering such Australianness it's surprising he made it back to Melbourne with his corks still attached.

"I said 'do you speak-a my language?"' sings Hays to a fellow Aussie in Brussels. "He just smiled and gave me a Vegemite sandwich."

Down Under was written in 1983, a time when it was no big deal to drive around Europe with a "head full of zombie" which could explain why the so-called plagiarism occurred through what the band call an "unconscious" reference.

It could also explain Hay's pseudo-Jamaican accent. And let's not forget that other charming line from the adopted Aussie anthem: "I come from a land down under. Where beer does flow and men chunder."

It seems odd that this catchy but silly song, a hit so widely recognised it was performed at the closing ceremony of the Sydney Olympics in 2000, a piece of music that is meant to evoke a sense of celebration but is ultimately about drunk Australians eating Vegemite sandwiches and, appropriately in this case, repeating them later, has been damned before the courts.

At least one thing of this whole greedy debacle isn't nonsense.

Hay confesses that of all those earnings in royalties over the years he has tended to "make a good dent in it". Or as the band would say when confronted by the opportunity to buy hundreds of jars of Vegemite with their hard-earned royalties, "Are you trying to tempt me because I come from the land of plenty?"