Men At Work up a gum tree as court says they stole part of their biggest hit

THEY achieved worldwide success, winning critical acclaim and selling millions of albums.

• "Men at Work" pose with their Grammy for best new artist at the awards show in Los Angeles in this Feb. 22, 1983

But now a court has decided the biggest hit by 1980s group Men At Work was not the product of hard graft, but plagiarism.

The group, led by Scot Colin Hay, is facing a multimillion pound bill after a judge ruled a section of their song Down Under was copied from a popular folk song.

Australia's Federal Court ruled that the band lifted the flute melody from a 1934 song Kookaburra Sits In The Old Gum Tree, written by a schoolteacher for the Girl Guides.

The band's songwriters, Colin Hay, originally from Kilwinning, North Ayrshire, and Ron Strykert, along with EMI, now face a bill for unpaid royalties and losses suffered by the small publishing firm Larrikin Music.

Justice Peter Jacobson said the flute melody in Down Under was unmistakably the same as the Kookaburra song penned by a teacher, Marion Sinclair, who wrote it for the Girl Guides.

Larrikin Music claimed in court that it had won a tender for the copyright for Kookaburra from the South Australian Public Trustee in 1990, after Miss Sinclair died.

"I have come to the view that the flute riff in Down Under in the 1979 recording and 1981 recording infringes on the copyright of Kookaburra, because it replicates in material form a substantial part of Ms Sinclair's 1935 work," judge Jacobson ruled.

Although it had a markedly different "feel" and musical context in Down Under – which topped charts around the world – the judge said the riff was an iconic Australian melody and had been "substantially" reproduced by Men At Work.

He said it was clear that band member Greg Ham had deliberately plagiarised the tune "for the purpose and with the intention of evoking an Australian flavour".

He pointed to the video, which shows Ham playing the melody in a tree, and evidence that Men At Work sometimes substituted the flute solo for singing the Kookaburra words at their concerts.

Mr Hay, 56, was called to give evidence at the Sydney court.

The singer, whose family emigrated to Australia when he was 14, was asked if his royalties from Down Under had been spent. He replied: "I tend to make a good dent in it."

He admitted the flute riff was "unmistakably" the same as Kookaburra but denied he was aware of a breach of copyright.

Mr Hay, who returns to Scotland for a series of gigs next week, described the legal action as "opportunistic greed".

The court case was sparked when a quiz show linked the flute riff in the two songs two years ago, prompting Larrikin's lawyers to write to Sony and EMI Music Publishing, who own the rights to Down Under.