The Nursery Rhyme That Ruined a Rock Band

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The stories behind the world's most iconic and fascinating sounds.

I'm Dallas Taylor.

When it comes to music, originality is a tricky thing because every song that's ever been written contains some elements of songs that came before it.

So where do you draw the line between inspiration and infringement?

Over the years, that question has landed lots of artists in court, and in some cases, it's even had tragic consequences.

Today's story comes from the Cautionary Tales podcast, and it starts with a TV show.

G'day, my name's Adam Hills.

Welcome to a special children's music edition of Spix and Specs.

Spix and Specs is a long-running staple of Australian TV.

That's host Tim Harford.

It's an irreverent quiz show pitting mixed teams of musicians and comedians against one another to answer questions on rock and pop.

In 2007, host Adam Hills was presiding over a special episode dedicated to kids' tunes.

Have a listen to this, name the Australian nursery rhyme this riff has been based on, as well as the name of the man playing it.

The opening bars of Men at Work song Down Under played.

The two teams looked mystified.

Which?

Nursery rhyme?

It's Men at Work.

Greg Hamm is the floor.

Greg Ham of Men at Work, yes.

And Down Under is

no.

We don't know.

That riff has been based on nursery rhyme.

Down under is often referred to as Australia's alternative national anthem.

It is to Australians what Bruce Springsteen's born in the USA is to Americans.

Back in the early 1980s, it was a global smash, topping the charts in Canada, the US, New Zealand, the United Kingdom and Switzerland.

It went gold, then platinum, then double platinum.

Millions of copies were sold.

The team on Spix and Specs had no doubt heard it hundreds, if not thousands, of times.

But no one could think of an Australian nursery rhyme that sounded remotely like it.

Oh my gosh.

That's exactly what, said Hills, relieved that someone had got the answer at last.

Watching everyone flummoxed wasn't a memorable moment that would enter the annals of TV history.

Or was it?

Someone watching Spix and Specs that night was certainly intrigued by the exchange.

and quickly reached out to Norm Lurie, managing director of Larikin Music Publishing.

Did he know that men at work had used Cookaborough Sits in the Old Gum Tree in their Smash Hit Record?

Norm

did not, but the information interested him greatly.

He now seemed to have a very valuable property on his hands because years before,

and for a song, He'd bought the rights to that simple, catchy nursery rhyme.

Now,

thanks to Spix and Specs, his company might collect a fortune.

Flute player Greg Hamm was a late addition to Men at Work.

The band's founding members, the Scots-born singer Colin Hay and lead guitarist Ron Strykert, had been playing as an acoustic duo for a year or so.

They performed together and wrote together, in what friends described as a musical marriage.

Colin Hay had a folk background, but with Ron Strykert, no style was off the table.

They experimented with punky new wave sounds and mixed in the more laid-back beats of reggae.

One of their first joint compositions was Down Under, a jokey ode to the legendary wanderlust of Australians.

The song tells of an Aussie youth travelling the world in a beaten-up VW campervan, encountering strange and exotic locals who are all transfixed by his Antipodean homeland.

Do you come from the land down under?

They would ask him, where bearders flow and men chunder?

Chunder, by the way, is Australian slang for vomit.

Down Under paints an unsentimental yet fond picture of modern Australia.

And it went down a storm when the band, now swelled with a bassist, drummer, and Greg Ham on flute, played it in the rowdy pubs of Melbourne.

At one point, as they were jamming the song with these new members, Greg Ham threw in a flute hook.

Down Under was quintessentially Australian, and he wanted to add to the existing composition what he called an Aussie cliché melody.

Here it is in an early version of Down Under, which they recorded in 1980.

Marion Sinclair had been making up songs and rhymes since she was a girl.

An only child and home-educated, Marion staved off loneliness by creating a rich internal world of fantasy and imagination.

Piano lessons gave her the musical education to hone her compositions and set them down on paper.

She made this youthful hobby her life, becoming a drama and music teacher in the 1920s and throwing herself into the Girl Guides, the Australian equivalent of the Girl Scouts.

It was while in church that inspiration struck Marion, prompting her to create, by far, her most popular ditty.

Rushing home, she set down Cookaburra Sits in the Old Gum Tree.

The kookaburra is one of Australia's most iconic birds.

Carnivorous, boisterous and noisy, its call resembles a raucous human laugh.

Gum trees, or rather trees of the eucalyptus family, are equally iconic and quintessentially Australian.

Perhaps this subject matter swayed the judges when, in 1934, Marion entered her song for a competition run by the Girl Guides Association of Victoria.

They wanted a typically Australian round to be sung at the upcoming Pan-Pacific Scouting Jamboree, and they chose Cookaborough.

Rounds are simple tunes where the singers follow the same melody but start at different different times.

Row, row, row your boat, Frere Jacques and Three Blind Mice are prime examples.

They're a fun and near foolproof way for amateur singers to achieve a pleasing harmony.

You no doubt sung them at school.

Kookabura almost instantly became a classic of the genre.

And when the international visitors to the Jamboree returned home, they took with them this slice of Australiana, singing it lustily from London to Lahore.

Marion Sinclair didn't cash in on this success, though.

Heaven forbid, Marion wasn't interested in collecting royalties from scouts or guides or anyone else enjoying her song and encouraging others to sing it.

It wasn't until 1975 that Marion was finally persuaded to register the composition as belonging to her.

And she was far too busy studying, teaching, aiding refugees, working with old people and running a hostel for girls to chase people for copyright infringement and demand her dues.

It's conceivable that in old age she heard down under.

In Australia, it was played everywhere.

But she either didn't recognise any similarities to her own composition or simply didn't care.

Marion dismissed Cookaborough Sits in the Old Gum Tree as a trifle and no match for her other songs.

And anyway,

it came to me from above, she'd say.

I don't own it.

After a life of Christian service, Marion Sinclair died in 1988, having signed over her rights to the Libraries Board of South Australia.

Larikin Music Publishing then swooped in to buy the ownership of Cookerborough with an interesting business model in mind.

For years, people had assumed Marion's song was free to use, so they'd included it in books teaching youngsters to play musical instruments and recorded it on albums of children's songs.

Norm Lurie at Larikin now busied himself delivering the the bad news.

Cookaborough was under new ownership and it wasn't free.

Norm had spent only a few thousand dollars acquiring the rights, a sum he'd swiftly recouped.

But thanks to sticks and specs, Larikin was now looking at a very different proposition.

Down Under had helped Men at Work win a Grammy.

Its initial success as a single had been huge, but it had been steadily earning on albums and greatest hits compilations for nearly 30 years.

Norm Lurie now wanted a cut, so sued Men at Work for 60% of the profits.

It was a huge sum, and if he won, it was a figure that would cause the members of Men at Work immense suffering.

Men at Work's flute maestro, Greg Ham, took the news of the court case hard.

I'm terribly disappointed that that's the way I'm going to be remembered, for copying something.

Greg's flute riff, improvised at a jam session and overlaid on a song written before he'd even joined the band, was threatening to sink Men at work.

If the judge found for Larikin Music Publishing, how would they unpick 30 years of earnings?

They'd spent that money on houses, businesses, invested it for their old age.

To suddenly hand over 60% now would mean liquidating their assets, auctioning off possessions and putting their homes up for sale.

Faced with this and backed by his record company, lead singer Colin Hay decided to fight.

He was going to argue that Kookabora hadn't been, to use the legal term, substantially reproduced in their hit song.

When I co-wrote Down Under back in 1978,

the singer said angrily, I appropriated nothing from anyone else's song.

There was no men at work.

There was no flute.

Yet the song existed.

To the judge's delight, Collins serenaded the court with a version of the song to show that the flute riff wasn't integral to the greater work.

But Larikin's counterclaim was that Greg Ham had blatantly copied the first two bars of Cookaborough.

Colin replied that if his friend had lifted Marion Sinclair's melody, it was inadvertent.

naïve, unconscious.

And by the time men at work had recorded the song, it had become unrecognizable.

Colin's elderly father agreed.

He'd been a singer himself and later owned a music shop.

So he knew a thing or two about songwriting.

He was incensed, said Colin.

He was getting older and he was getting stressed.

Smoke would come out of his ears.

The court case dragged on.

Hearings, appeals, expert witness after expert witness, and the ever-mounting legal bills.

And all the time, the scales seemed to be tipping in favour of Larikin.

Stressed and exasperated, it was all too much for Colin's father.

He died in 2010.

I do feel instinctively it contributed to knocking him off his perch, lamented his grieving son.

Copyright laws exist to protect composers.

It's very hard to write an ode to joy, a marriage of figaro, or a baby shark,

but very easy to copy them.

Copyright gives creators some ability to stop copycats and thus an incentive to do the creative work in the first place.

And historically, Musicians have had a very hard time getting paid for the tunes they've created.

Back when there was a music hall every few hundred yards on the streets of Britain, the songs of Joseph Tabra were almost certain to be wafting out.

He was credited with over 7,000 compositions, though claimed he'd written many more.

Ting-ting, that's how the bell goes.

He's sailing on the briny ocean.

And oh, you little darling, were among his hits.

But all were dwarfed by the runaway success of 1892's Daddy Wouldn't Buy Me a Bow Wow.

Daddy wouldn't buy me a bow wow.

Bow wow.

I've got a little cat.

I am very fond of that.

But I'd rather have a bow wow wow.

Did I foresee its popularity?

Good gracious, no, said Tabra.

Did I make a vast fortune out of it?

Yes, eight pounds and odd shillings.

Eight pounds would be just a few thousand dollars compared to the wages of the day.

That doesn't seem much of a return for creating a song that swept the globe.

It's little wonder then that Joseph Tabras was often penniless.

The stars who sang his popular songs got rich.

They took a cut of ticket sales.

And publishers got rich selling the sheep music.

But few royalties found their way to people like Joseph Tabrar, who wrote the songs in the first place.

But around the time that Daddy Wouldn't Buy Me a Bow Wow was wowing the Victorians, the music publishers were starting to see their profits being eaten away too.

So-called pirates would dash off copies of the newest hits on cheap paper and employ homeless people to sell them on the streets for pennies.

The knockoff sheet music obviously didn't include the printer's address and the street hawkers had no fixed abode.

So how could legitimate music publishers sue the pirates?

The Musical Defence League was formed to push for a tightening of the copyright laws and stem the hemorrhaging of profits.

Unless something was done threatened the Musical Defence League, its members would stop publishing new songs altogether.

The composers and publishing houses got their way.

Over the course of a decade, new copyright protections came into force, regulating sheep music, piano rolls, wax cylinders, phonograph records, and whatever new technology might come next.

And the rights and royalties of composers were also improved.

They demand payments for their songs for the rest of their lives and even pass these rights on to their heirs upon death.

Good news?

Well, there's a sharp trade-off here.

If you make copyright protections very generous to creators, that makes them richer.

And it might also encourage more creative activity, especially of really expensive projects such as movies.

But if copyright protections are too generous to the original creator, they limit our ability to remix and adapt old ideas, or just to enjoy them without paying expensive royalties.

As I say, it's a trade-off.

The simplest way in which the trade-off bites is the question, how long should copyright protection last?

In Australia, Like many countries, the answer is that music copyright lasts 70 years years from the date of the composer's death.

Kookaborough was written in 1932 and Marion died in 1988.

So the copyright lasts until 2058, 126 years,

for a song she composed for fun.

So why are copyright terms so insanely long?

Not because of the artists themselves.

Show me the author or the composer lobbying furiously for royalties to last until after their grandchildren are dead.

No, it's all about corporate power.

Large corporations hoover up artists' rights.

These businesses have the scale to enforce their ownership, taking infringers to court, and the clout to lobby governments not to reform the copyright legislation.

Now, this gets especially complicated with parody music.

In the US today, you can legally parody popular songs without permission, as long as your version meets certain criteria.

But back in the 1970s, things were different, which was bad news for a Beatles parody band that appeared on Saturday Night Live.

That's after the break, along with the conclusion of the Down Under saga.

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Congratulations to Wayne Ewan for getting last episode's mystery sound right.

That growl is the startup sound of the Atari Jaguar, a relatively obscure game console that came out in 1993.

It was the company's second console named after a cat species, following the handheld Atari Lynx in 1989.

The Jaguar used two 32-bit coprocessors which were named Tom and Jerry.

This made it the world's first 64-bit console.

And here's this episode's Mystery Sound.

If you know that sound, submit your guess at the web address mystery.20k.org.

Anyone who guesses it right will be entered to win a super soft 20,000Hz t-shirt.

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The implosion of the Beatles upset many music fans who couldn't quite believe that there'd be no more records from the Fab Four.

Concert promoters began to offer huge sums, tens and then hundreds of millions for a reunion.

Saturday Night Live eventually aired a sketch with a Beatles parody band, the Ruttles, fronted by Monty Python's Eric Idol.

The Ruttles performed a raft of Beatles-esque tunes, Piggy in the Middle in place of I am the walrus, ouch instead of help.

Ouch!

You're breaking my heart, ouch, I'm falling apart.

Ouch!

Audiences were delighted, and even the real Beatles appreciated the comic send-up of their work.

But this blessing wasn't sufficient to protect the Ruttles from the lawyers.

The Beatles had lost the publishing rights to their songs in the late 60s, and the new owners, ATV Music, certainly didn't see the funny side of the parody, all you need is cash.

They lodged a lawsuit, and fearing the cost of fighting it, the Ruttles surrendered half of the royalties and added the names Lennon and McCartney to the writing credits.

The band obviously wanted to sound like the Beatles, but denied directly ripping off Lennon and McCartney.

The word ruttle is in fact a verb, they explained.

To ruttle is to copy or emulate someone you admire in the music business.

The Beatles were ruttles.

They ruttled Gene Vincent and Eddie Cochrane.

Mozart was a ruttle.

I've argued that copyright lasts too long.

But the case of the ruttles suggests another problem.

Maybe copyright protection is also too broad, which in this case means how much of Kookaborough can you take?

And how radically do you have to transform it before you're in the clear?

These are more complicated questions than simply asking how long copyright should last,

which was why Down Under ended up in court and why the proceedings dragged on for so long.

And our attitudes to copying aren't just a matter for the courts, they're a matter of culture too.

And I think we fuss too much about copying.

Books, films and songs can be shallow and derivative without plagiarising.

While a creative work that does contain plagiarism can still be deep and original.

Quoting Kookaburra in Down Under was a clever nod to Australian history and culture.

It's a repeated three-second Easter egg that works well with the music and makes sense with the lyrics.

But sadly, that's not how these cases are judged.

It's a big win for the underdog, said a lawyer when the judgment was finally read.

He was acting on behalf of Norm Lurie and Larikin Music.

Men at Work had lost.

Be it intentional or subconscious, Greg Hamm's flute riff was an infringement of Larikin's ownership of Cookaborough, and the firm was owed damages.

But now the federal court has ruled that the song copied a substantial part of another Australian classic, Cookaborough Sits in the Old Gum Tree.

The company, which owns the copyright to that song, is now poised to receive millions in royalties.

Of course, it would be disingenuous for me to say that there wasn't a financial aspect involved, said a delighted Norm Urey.

But you could just as easily say what has won out is the importance of checking before using other people's copyrights.

One person who could think of little else in the wake of the ruling was the flute player Greg Hamm.

He felt crushing guilt that he'd landed his bandmates in a five-year legal battle and tried to blot it out with drink and drugs.

Having sold his long-time home, he'd downsized to help settle the bills.

It was in this more modest apartment that Greg was found dead.

He'd suffered a heart attack, and Men at Work's lead singer Colin Hay angrily blamed the stress of the court case.

It's people you love who you're losing over litigation based on greed and opportunism.

So what did Norm Luri and Larikin make from suing men at work?

They'd wanted 60% of all the profits from Down Under,

and the judge gave them

5%.

And then, only on money earned since 2002, not all the way back to Men at Work's 1980s heyday.

It was deemed that a greater share would have been excessive, overreaching, and unrealistic.

It's thought this 5% settlement amounted to only around $100,000.

Both sides had spent millions in legal fees.

So while Men at Work had lost the case, there were really no winners.

Aside from the lawyers.

If we don't like that result, maybe we should think about writing a more sensible copyright law.

But there is one final surprising casualty in this sorry tale.

As one of Australia's most beloved pop stars, Colin Hay had been a guest on the quiz, Spix and Spex.

He and the host, Adam Hills, had become friends.

We were actually quite close, said Hills.

We even house sat for the singer.

When Spix and Specs sparked a devastating legal dispute, some men at work fans held Hills directly responsible.

I got a lot of pretty abusive stuff on Facebook, the TV star admits.

It's such a weird thing to have happened.

that a throwaway question on a music quiz show leads to a court case.

It's such an iconic beloved Australian song, but I'll never hear it without knowing that I've got this awful connection to it.

But it's the impact on his relationship with Men at Work's singer that most upsets Adam Hills.

I haven't spoken to Colin for ages.

It all got weird between us.

Exhausted and embittered by the whole affair, Colin Hay found performing down under on stage an increasingly harrowing and depressing experience.

He'd launch into the hit and immediately be transported back to the court case.

That is, until one evening.

Playing to a crowd of 25,000 people, all dancing and gleefully singing along, Colin had an epiphany.

Looking out across the audience, he suddenly thought:

they can't touch this.

That story came from Cautionary Tales, a podcast that explores history's greatest mistakes and asks what we can learn from them today.

Each episode explores a catastrophe brought to life with vivid and immersive sound design, from a massive shipwreck in California to a disastrous cancer treatment to how the movie Jaws almost fell apart during production.

Follow Cautionary Tales right here in your podcast player.

Cautionary Tales is written by me, Tim Hartford, with Andrew Wright, Alice Fiennes, and Ryan Dilley.

It's produced by Alice Fiennes and Marilyn Rust.

The sound design and original music are the work of Pascal Wise.

Additional sound design is by Carlos San Juan at Brain Audio.

Ben Nadaf Hafrey edited the scripts.

I'm Dallas Taylor.

Thanks for listening.

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