Cautionary Tales with Tim Harford - The Nursery Rhyme That Ruined a Rock Band

Episode Date: February 21, 2025

"Down Under" was huge. This jokey ode to legendary Australian wanderlust helped Men at Work win a Grammy and was a key part of the band's creative legacy. By 2007, it had been earning Men At Work a steady stream of royalties for nearly 30 years. That was when a quiz show pointed out the song's subtle connection with an Australian nursery rhyme... Tim Harford examines one of the most controversial copyright battles in music history. Where does inspiration end and infringement begin? For a full list of sources, see the show notes at timharford.com.See omnystudio.com/listener for privacy information.

Pushkin You might have noticed that things are a little different on Cautionary Tales this year. In 2024 we brought you a new episode every fortnight. But this year we are doubling our output. New stories of heart-thumping peril, mind-blowing mistakes and jaw-dropping scandal will now be delivered straight to your ears every week. Here's one for you right now. G'day, my name's Adam Hills and welcome to a special children's music edition of Spicks and Specks.

Spicks and Specks is a long-running staple of Australian TV. 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. There'd be lots of comic potential in that. He asked the teams to buzz in if they could name the Australian nursery rhyme that this riff was based on. the Australian nursery rhyme that this riff was based on. The opening bars of Men at Work's song Down Under played.

The two teams looked mystified. Which 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 Spicks 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. Are you kidding? One of the exasperated contestants asked Adam Hills. OK, I'll give you one more listen to it, said Hills. This bit especially. Hills punched his pen in the air along to the rhythm of the song's flute line. Duh duh duh duh duh. Duh duh duh duh duh duh duh duh duh duh.

More blank stares. One contestant held her head in her hands. The question was frying her brains. Finally someone buzzed in. Cookaburra sits in the old gum tree? That's exactly right, said Hills. Relieved that someone 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 Spicks and Specks that night was certainly intrigued by the exchange and quickly reached out to Norm Lurie, managing director of Larrikin Music Publishing. Did he know that men at work had used Kookaburra 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 Spicks and Specks, his company might collect a fortune. I'm Tim Harford and you're listening to another Cautionary Tale. 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 Streichert 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 Streichert 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 beer does 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 Hamm on flute, played it in the rowdy pubs of Melbourne. It was the B-side of their self-financed first single, but it wasn't the version you'd probably recognise. It had a slower, dreamier tempo, a bit prog-rock, a bit reggae, a bit psychedelic. When the band signed to a major label and the track was re-recorded, Greg Hamm came up with a new flute hook to enliven a sped-up arrangement. It had come to him during a live jam session. Down Under was quintessentially

Australian and he wanted to add to the existing composition what he called an Aussie cliché melody. 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 sat down, Kukaburra 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 Kookaburra. Round's are simple tunes where the singers follow the same melody but start at different times. Row, row, row your boat, Frère 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. Kukaburra 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 lusterly 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 Kookaburra 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 Library's Board of South Australia. Larrikin Music Publishing then swooped in to buy the ownership of Kookaburra 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 Larrakin now busied himself delivering the bad news. Kookaburra 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. It's earned a hell of a lot of money for us since we've bought it, he admitted. But thanks to spicks and Specs, Larrakin 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. Cautionary Tales will be back in a moment. Men at Work's flute maestro, Greg Hamm, 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 Larroquin 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 Kookaburra 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 judges' delight, Colin serenaded the court with a version of the song to show that the flute riff wasn't integral to the greater work. But Larrikin's counterclaim was that Greg Hamm had blatantly copied the first two bars

of Kookaburra. Colin replied that if his friend had lifted Marion Sinclair's melody, it was inadvertent, naive, unconscious. And by the time men at work had recorded the song, it had become unrecognisable. 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 favor of Larracan. 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. But the copyright case hadn't claimed its last victim. Racked with guilt and worried about losing his home, flute player Greg Hamm was observed to be going downhill. He'd been drinking and, according to one friend, using heroin. It was said the dispute over Down Under had undone him. 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 Tabrah 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. Did I foresee its popularity? Good gracious no, said Tabrah.

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 Tabra was often penniless, a situation he described euphemistically as being impecuniously embarrassed. The stars who sang his popular songs got rich.

They took a cut of ticket sales. And publishers got rich selling the sheet music. But few royalties found their way to people like Joseph Tabrah, who wrote the songs in the first place. Think of a catchy refrain, he said of his creative process. Think of the damn silliest words that will rhyme anyhow. Think of a haunting pretty melody. And there you are, the fortune of your publisher is made.

The fortune of your publisher is made. 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 knock-off 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

haemorrhaging of profits. The piracy of musical copyright has enormously increased, said one of those proposing a new law, and has now reached such alarming proportions that it is having a paralysing effect on the legitimate trade in musical works. 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 sheet 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 onto 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. Although Joseph de Bra didn't seem to need much incentive to churn out the hits.

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 from the date of the composer's death. Kookaburra was written in 1932 and Marion died in 1988, so the copyright lasts until last until 2058, 126 years. For a song she composed for fun. Remember the trade-off. We want to give creators a temporary monopoly over their work, to ensure

that they actually have an incentive to make art. But if that monopoly is too strict, or lasts too long, everyone else loses out, because they can't enjoy or reuse the art without paying. So what counts as too long? I'm speaking here as a creative person myself. I benefit from copyright. My first book, The Undercover Economist, was published in 2005 and it's still selling. So personally, I'm happy that copyright lasts more than 20 years. But it doesn't need to last a century. I'd still have written the book and it would still have been published with 20 years of copyright protection. Or even with 10. But we don't need to be extreme about this. Let's say copyright should last 20 years

after the moment of creation. Or 30 years. Or 40. That's plenty. Kookaburra would still have been in the public domain from 1972, almost a decade before Down Under hit the charts. 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. 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. It became a running joke on the TV show Saturday Night Live that it would pay $3,000 for the Beatles to reform. Saturday Night Live eventually aired a sketch with the Beatles' parody band, The Rutles, fronted by Monty Python's Eric Idle. The Ruttles performed a raft of Beatles-esque tunes, ouch instead of help, piggy in the

middle in place of I am the walrus. 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. John Lennon advised us that we might have trouble with Get Up and Go, said one Ruttal, because it sounded so much like Get Back. 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 Rutles surrendered half of the royalties and added the names Lennon and McCartney to the writing credits. It's brutal, said one rattle. I couldn't afford to get a lawyer that would go up against these big corporations. The band obviously wanted to sound like the Beatles, but denied directly ripping off Lennon and McCartney. For centuries, composers have reworked and reinterpreted one another's works, quoting a phrase here, a melody there, and the Ruttles said they were no different. 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 Cochran. Mozart was a rattle. Of course, the ruttles never tested this argument before a judge. It was an expensive gamble they weren't willing to take. Men at work, however, had accepted the substantial risk to defend their ruttling of Kookaburra, and the court was about to hand down its final verdict. Cautionary Tales will resume shortly. I've argued that copyright lasts too long. But the case of the Rutles suggests another problem. Maybe copyright protection is also too broad. Economists sometimes talk about the breadth or the height of intellectual property protection,

which in this case means how much of Kookaburra 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. 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. The truth is that there's copying and then there's copying.

I'm a great admirer of Malcolm Gladwell's writing. If I were to print 10,000 copies of his new book, Revenge of the Tipping Point, sell them and keep the revenue, I'd be committing one form of intellectual property theft, indirectly stealing money from him. If instead I printed, buy Tim Harford on the cover, I'd be committing a different form of mischief, stealing the credit as well as the profits. Or there's a third thing I could do, I could add chunks of his writing to my own. That seems crazy, but stranger things have happened. 20 years ago, a Broadway play was attracting praise and a Tony nomination

for its wrenchingly authentic portrayal of what makes a murderer. The reason for the realism was soon revealed. The playwright had lifted long, uncredited passages from a magazine profile of a real psychiatrist who studied killers. That profile was by Malcolm Gladwell. The psychiatrist was enraged and considering legal action,

and she enlisted Malcolm to back her case. He was initially helpful, until he read the script for himself. I found it breathtaking, he said. Instead of feeling that my words had been taken from me, I felt that they had become part of some grander cause. Around 675 of the article's words had been taken without Malcolm's permission.

These words were the result of his work and his craft. The sentences and paragraphs they created, lodging ideas in readers' minds, belonged to Malcolm. And now, a hit play was benefiting from them without crediting or compensating him. A savvier writer would have rewritten the quotes from me, so that their origin was no longer recognisable. But how would I have been better off if she had disguised the source of her inspiration? Many people were furious on Malcolm's behalf. Having originally been fated, the playwright was now raked over the coals for intellectual

thievery. It feels absolutely terrible, she told Malcolm. I just didn't think I was doing the wrong thing. And Malcolm wasn't so sure she had. The furore over the play had given him a chance to think about where his own ideas had come from. From the books and articles he'd read, speeches he'd heard, films he'd seen. Malcolm admitted that some of his phrasing used in the play was pretty similar to works already in existence. One formation of words sounded very close to something Gandhi had once said. The dishonesty of the plagiarism fundamentalists is to encourage us to pretend that these chains of influence and evolution do not exist and that a writer's words have a virgin birth

and an eternal life. Sadly, many of the current copyright laws conform to the thinking of these plagiarism fundamentalists. And it was to these standards that Men at Work's Down Under was being judged. It's a big win for the underdog, said a lawyer when the judgement was finally read. He was acting on behalf of Norm Lurie and Larrikin Music. Men at work had lost. Be it intentional or subconscious, Greg Hamm's flute riff was an infringement of Larrikin's ownership of Kookaburra, and the firm was owed damages. Of course it would be disingenuous for me to say that there wasn't a financial aspect

involved, said a delighted Norm Urie, 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 Lurie and Larracan 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.

Under copyright law, Larrickin's claim of infringement had cleared the legal bar to win the case, but the judges spoke of their disquiet at having to find against men at work. The modest damages awarded to Larrickin were perhaps a warning to vexatious litigants that they should find a more amicable alternative to launching legal action. 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, Spicks and Specs. He and the host, Adam Hills, had become friends. We were actually quite close, said Hills. We even house-sat for the singer. When Spicks and Specs sparked the 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 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. For a full list of our sources, see the show notes at timharford.com Cautionary Tales is written by me, Tim Harford, 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 Sanjuan at Brain Audio. Ben Nadaph Haferi edited the scripts. The show features the voice talents of Melanie Gutridge, Stella Harford, Oliver Hembra, Sarah Jupp, Maseya Monroe, Jamal Westman and Rufus Wright. The show also wouldn't have been possible without the work of Jacob Weisberg, Greta Cohn, Sarah Nix, Eric Sandler, Carrie Brody, Christina Sullivan, Keira Posey and Owen Miller. Cautionary Tales is a production of Pushkin Industries. It's recorded at Wardour Studios in London by Tom Berry. If you like the show, please remember to share, rate and review.

It really makes a difference to us. And if you want to hear the show ad-free, sign up to Pushkin Plus on the show page on Apple Podcasts or at pushkin.fm slash plus.