Men at Work

In January 1983, Men at Work became the first Australian artists to hold the number one album and the number one single in the United States at the same time. Twenty-seven years later, an Australian court ruled that two bars of the flute on that song came from somewhere else. Between those two dates fits the band's entire story. And so does that of a musician who carried a blame that legally was never his, because nobody ever sued him.

Melbourne, the humour and the record

The band formed in Melbourne in the late seventies, around Colin Hay, a singer and songwriter born in Scotland and raised in Australia, and Greg Ham, a multi-instrumentalist who contributed flute, saxophone and keyboards. Their first record, Business as Usual, came out in 1981 and strung together fifteen weeks at number one on the Billboard albums chart. Out of it came "Who Can It Be Now?", with the sax riff, and "Down Under". In 1983 they won the Grammy for Best New Artist.

It is worth getting the figures right, because they get repeated wrong. The only song of theirs that was number one in both countries, the United States and the United Kingdom, is "Down Under": "Who Can It Be Now?" topped the Hot 100, but in the United Kingdom it stopped at number 45. The verifiable record is the other one, the January 1983 one, and it is more specific: album and single at the top of the American charts at the same time, something no Australian had managed before.

A musical joke, and the lawsuit that came after

The flute riff of "Down Under" was not an accident. The record's producer, Peter McIan, described it as a musical joke by Greg Ham: a deliberate nod to "Kookaburra Sits in the Old Gum Tree", the children's song that Marion Sinclair wrote in 1932 and entered in 1934 in a Girl Guides competition. In the video Ham can be seen playing the flute sitting on the branch of a gum tree, which is exactly the tree of the children's song. Claiming total innocence does not hold up. What does hold up is that it was a quotation, pointed out to camera, and not a disguised plagiarism.

What turned the nod into a lawsuit was a music quiz on television: in 2007, a programme on Australia's ABC asked where that riff came from. The one who sued was not the author's family, but Larrikin Music Publishing, a publisher that had bought the rights to "Kookaburra" in 1990, two years after Sinclair's death. And the ones it sued, in 2009, were Colin Hay and Ron Strykert, the credited writers of "Down Under", plus Sony BMG and EMI Songs Australia.

In 2010 the court ruled that there had been infringement. That is usually where the account ends, and that is where what is almost never told begins: Larrikin was claiming between 40% and 60% of the song's royalties, and the judge granted it 5%, and only from 2002 onwards. The appeal was rejected and the High Court of Australia closed the case in October 2011. Saying "a court found in their favour" is true and misleading at the same time. The one who sued won the principle and lost the figure by a landslide.

The one who was never sued

Greg Ham was not credited as a writer of "Down Under" and was not sued. He played the flute and nothing else. No court convicted him, because no court ever got to judge him. The ruling formally left him out and reached him all the same, and that is a kind of harm that case files do not record.

The line that is usually quoted — that it hurt him to end up remembered for that — is best attributed where it belongs. It is not a public statement by Ham: it is reported by David Nolte, a friend of his and the person who found his body, as something Ham had said to him. It is the closest thing to a first-hand account of how he lived through those years, and for that very reason it is worth saying who is telling it.

Ham died on 19 April 2012 at his home in Carlton North, in Melbourne, at the age of 58. The police ruled out suspicious circumstances and a heart attack was reported as the cause. Friends of his later spoke of a heroin addiction that had worsened after the litigation. There is no straight line between the ruling and his death, and it is best not to draw one: what there is, is a man with a dependency that got worse in his final years, and a lawsuit that left him outside the case file and hurt him on top of that.

What to remember

Men at Work were the first Australians to top the two main United States charts at the same time, and they did it with a song that laughed fondly at their own country. Fifteen weeks at number one with a debut record, a Grammy for Best New Artist in 1983 and a track that still plays every time an Australian wants to say where they are from. No court touched any of that.

And remember the complete ending, not the headline. A judge decided that two bars of flute came from a children's song from 1932, and handed the claimant publisher a minimal fraction of what it was asking for, and only from 2002 onwards. The man who played those bars was not a writer, was not sued and was not convicted, and even so he was the one who had the worst of it. Blame is not handed out the way sentences are.

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Sources

Men at Work were an Australian band formed in Melbourne in the late nineteen-seventies; their singer and main songwriter, Colin Hay, was born in Scotland and raised in Australia, and Greg Ham played flute, saxophone and keyboards. Their debut album, "Business as Usual" (1981), remained fifteen weeks at number one on the Billboard albums chart, and in January 1983 the group simultaneously topped the American albums and singles charts, the first Australian artist to achieve it. "Down Under" was number one in the United States and in the United Kingdom; "Who Can It Be Now?" reached number one on the Billboard Hot 100 and number 45 in the United Kingdom. In 1983 they won the Grammy for Best New Artist. The flute riff of "Down Under" quotes "Kookaburra Sits in the Old Gum Tree", written by Marion Sinclair in 1932 and entered in 1934 in a Girl Guides competition; the producer Peter McIan described that quotation as a musical joke by Greg Ham. The matter became public as a result of a music quiz broadcast by Australia's ABC in 2007. In 2009, Larrikin Music Publishing, a publisher that had acquired the rights to "Kookaburra" in 1990, two years after Sinclair's death, sued Colin Hay and Ron Strykert, the credited writers of the song, and Sony BMG and EMI Songs Australia; Greg Ham was not credited as a writer nor was he a defendant. In 2010 the court declared the infringement and set compensation at 5% of the royalties from 2002 onwards, far below the 40% to 60% claimed; the appeal was rejected and the High Court of Australia closed the case in October 2011. Greg Ham died on 19 April 2012 at his home in Carlton North, Melbourne, at the age of 58; the police ruled out suspicious circumstances and a heart attack was reported. Friends of his publicly pointed to a heroin addiction worsened after the litigation, and David Nolte, who found the body, reported that Ham was pained by the idea of being remembered for the case. Profile compiled for Rebobinados with fact-checking; interpretations of the meaning of the work are offered as the author's reading. No song lyrics are reproduced, for copyright reasons. Information drawn from The Sydney Morning Herald, ABC News, The Guardian, Billboard, Wikipedia and other coverage.

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