The Nursery Rhyme That Ruined a Rock Band

Spicks and Specs is a long running staple of Australian TV. It's an irreverent quiz show fitting mixed teams of musicians and comedians against one another to answer questions on rock and pop. In two thousand and seven, 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 opening bars of Men at Work 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 nineteen eighties, it was a globe 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 Spics 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. Okay, 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, derda derda more blank stares. One contestant held her head in her hands. The question was frying her brains. Finally, someone buzzed, Inkuoker burrough sits in the

old gum tree. That's exactly right, said Hills. Believe that someone got the answer at last watching Everyone Flummes wasn't a memorable moments 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 Yury, managing director of Larrikin Music Publishing. Did he know that Men at Work had used kooker bure 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 value 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 Specs, his company might collect a fortune. I'm Tim Harford and you're listening to another cautionary tale. Flute player Greg Ham was a late addition to Men at Work.

The band's founding members, the Scots born singer Colin Hay and lead guitarist Ron Strikert, 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 Strikert, 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 ozzy youth traveling the world in a beaten up v W campavan, 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 shun under Chunder

by the way his 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. It was the B side of their self financed first single, but it wasn't the version you'd probably recognize. It had a slower, dreamier tempo, a bit prog rock, a bit reggae, a

bit psychedelic. When the band signed to a major label, When the track was re recorded, Greg Ham 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 quint essentially Australian and he wanted to add to the existing composition what he called an ossie cleane melody Derda Derda dead Derda. Marian Sinclair had been making up songs and rhymes since she was a girl.

An only child and home educated, Marian 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 nineteen twenties and throwing herself into the Girl Guides, the Australian equivalent of the Girl Scouts. It was while in church that inspiration struck Marian, prompting her to create

by far her most popular ditty. Rushing home, she set down cuokerburraugh 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 nineteen thirty four 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 cuoker Borough. Rounds are simple tunes where the singers follow the same melody but start at different times. Row Row Row your Boat, Praier Jacqua and Three Blind Mice are prime examples. There are fun and near full proof way for amateur singers to achieve a pleasing harmony. You no doubt sung them

at school. Coooker Borough 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 scat or guides or anyone else,

enjoying her song and encouraging others to sing it. It wasn't until nineteen seventy five that Marian 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 recognize any

similarities to her own composition or simply didn't care. Marian dismissed kooker borough 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 nineteen eighty eight, having signed over her rights to the Library's Board of South Australia. Larakin Music Publishing then swooped in to buy the ownership of Kookaburraugh

with an interesting business model in mind. For years, people had assumed Marion's song was free to use, so they had included it in books teaching youngsters to play musical instruments and recorded it on albums of children's songs. Norm Lewie at Larakin now busied himself delivering the bad news. Kooker Burrough 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, Larakin 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 thirty years. Norm Lyury now wanted a cut, so sued

Men at Work for sixty percent of the profits. It was a huge sum, and if one 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 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 Larrikin Music Publishing, how would they unpick thirty years of earnings. They'd spent that money on houses, businesses, invested it for their old age. To suddenly hand over sixty percent 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 Kuockerburough hadn't been to use the legal term substantially reproduced in their hit song when I co wrote down Under back in nineteen seventy eight, 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, Colins serenaded the court with a version of the song to show that the flute riff wasn't integral

to the greater work. But Larakin's counterclaim was that greg Ham had blatantly copied the first two bars of Kookerborough. 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 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, self to expert witness, and the ever mounting legal bills, and all the time the scales seemed to be tipping in favor of Larrikin. Stressed and exasperated, it was all too much for Colin's father. He died in

twenty ten. 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 lou using his home flute player, Greg Hamm was observed to be going downhill, had been drinking and, according to one friend, using heroin. It was said the dispute over down under had undone him. Copyright laws exists

to protect composers. It's very hard to write an ode to joy, a marriage of FIGUREO 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 Tabras were almost certain to be wafting out.

He was credited with over seven thousand compositions, though claimed he had 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 eighteen ninety two's Daddy Wouldn't buy Me a Bow 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 glow. It's little wonder then that Joseph Tebra 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 sheep music, but few royalties found their way to people like Joseph Tabra, who wrote the songs in the first place. Think of a catchy reframe, 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. 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 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 Defense League was formed to push for a tightening of the copyright laws and stem the hemorrhaging 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 paralyzing effect on the legitimate trade in musical works. Unless something was done, threatened the Musical Defense League its members would stop publishing

new songs all together. The composers and public bushing 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 onto their airs 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 Debra 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 seventy years from the date of the composer's death. Kooker Borough was written in nineteen thirty two and Marion died in nineteen eighty eight, so the copyright lasts until twenty fifty eight, one hundred and twenty six years for a song she

composed for fun Remember the tradeoff. 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 properly 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 two

thousand and five and it's still selling. So personally, I'm happy that copyright lasts more than twenty 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 twenty years of copyright protection, or even with ten. But we don't need to be extreme about this. Let's say copyright should last twenty years after the moment of creation,

or thirty years or forty that's plenty. Kooker Borough would still have been in the public domain from nineteen seventy two, 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 artist rights. These businesses have the scale to enforce their ownership, taking infringes 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 for 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 three thousand dollars for the Beatles to reform. Saturday Night Live eventually aired a sketch with the Beatles parody band the Ruttles. Fronted by Monty Python's Eric Idol. The Ruttles performed a raft of Beatlesque 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 Ruttle, because it sounded so much like get Back. The Beatles had lost the publishing rights to their songs in the late sixties, and the new owner's 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 Lenon and McCartney to the writing credits. It's brutal, said one Ruttle. 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 Lenon 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 ruttle. 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 kooker Borough, 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 Ruttles 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 kooker Borough 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 plagiarizing, 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 ten thousand 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 by 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. Twenty 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.

had heard, films he had seen. Malcolm admitted that some of his phrasing used in the play was pretty similar to works already in existence. One formation of works sounded very close to something Gandhi had once said.

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 Ury. 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 Ham. 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 longtime home, hid downsize 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 Works 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 Yuri and Larakin

make from suing Men at Work? They'd wanted sixty percent of all the profits from down Under and the judge gave them five percent, and then only on money earns since two thousand and two, not all the way back to Men at Works nineteen eighties Heyday. It was deemed that a greater share would have been excessive, overreaching, and

unrealistic under copyright law. Larakin'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 Larakin were perhaps a warning to vexatious litigants that they should find a more amicable alternative to launching legal action. It's thought this five percent settlement amounted to only around one hundred thousand dollars.

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 Specks. He and the host, Adam Hills

had become friends. We were actually quite close, said Hills, who even house sat for the singer when Spis and Specks 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, 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 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. Unch into the hit and immediately be

transported back to the court case. That is, until one evening, playing to a crowd of twenty five thousand 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 dot com. Cautionary Tales is written by me Tim Harford with Andrew Wright, Alice Fines and Ryan Dilly.

It's produced by Alice Fines 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. Bend daf Haffrey edited the scripts. The show features the voice talents of Melanie Guttridge, Stella Harford, Oliver Hembrough, Sarah Jupp,

massaam Monroe, Jamal Westman, and rufus Wright. The show also wouldn't have been possible without the work of Jacob Weisberg, Greta Cohne, Sarah Nix, Eric Sandler, Carrie Brody, Christina Sullivan, Kira Posey, and Owen Miller. Cautionary Tales is a production of Pushkin Industries. It's recorded at Wardore 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, add free sign up to Pushkin Plus on the show page on Apple Podcasts or at Pushkin dot fm, slash plus