Australia's Federal Court has rejected an appeal by EMI Music and Men at Work against a ruling that part of the 1983 hit Down Under was lifted from Kookaburra Sits in the Old Gum Tree.
In February last year, a Sydney court decided that a flute riff from Down Under was indeed swiped from the 1934 song written by Marion Sinclair for a Girl Guides Jamboree.
Kookaburra copyright holder Larrikin Music hoped to trouser 40-60 per cent of the song's earnings from songwriters Colin Hay and Ron Strykert, although a costs hearing "ordered that the band must pay five per cent of money earned from the song since 2002 as well as future royalties", the BBC explains.
Last year, Hay defended that any reference to Kookaburra was "inadvertent, naive, unconscious", adding: "By the time Men At Work had recorded the song, it had become unrecognisable."
EMI Music's appeal described the offending flute riff as "at most, a form of tribute to the tune", which can only be detected by a "highly educated musical ear".
The court disagreed, and its decision allows Larrikin Music to proceed with its claim for "millions of dollars" from Hay and Strykert. ®