MICHELE NORRIS, host:
Quick, think of an Australian tune, perhaps "Waltzing Matilda" or maybe this kids song.
Unidentified Child: (Singing) Kookaburra sits in the old gum tree. Merry, merry king of the woods is he.
NORRIS: Sweet song. Its about a bird. And in the U.S., lots of kids learn it in music classes. Well, in Australia, "The Kookaburra Song" is at the center of a fierce intellectual property battle.
The owner of the copyright claims it was unlawfully sampled in a hit song that dates back to 1981. NPRs Neda Ulaby explains.
NEDA ULABY: You might not remember the Men at Work's song "Down Under."
(Soundbite of song, "Down Under")
Mr. COLIN HAY (Vocalist, Men at Work): (Singing) Traveling in a fried-out combie on a hippie trail, head full of zombie. I met a strange lady, she made me nervous. She took me in and gave me breakfast.
ULABY: (Unintelligible) enough. In fact, contestants on an Australian game show were asked to guess which childrens song it contained. No one could figure it out, neither could I.
Matthew Westwood had to show me.
Mr. MATTHEW WESTWOOD (Arts Editor, The Australian): Thats the audio, the part (singing). Thats that part.
ULABY: Westwood is the arts editor of the newspaper The Australian. Its basically their New York Times. He says after the game show aired, the owner of "The Kookaburra" copyright filed suit against the two Men at Work who wrote "Down Under" and their former record label. A number of Australians, including Westwood, found this a bit much.
Mr. WESTWOOD: It's an imaginative reusing of a well-known song that's almost a folk song in Australia.
ULABY: Westwood sees sampling and reusing musical motifs as part of a long tradition of legitimate artistic license. "The Kookaburra Song" was originally written by a Melbourne schoolteacher in 1934 for the Australian version of the Girls Scouts.
Mr. WESTWOOD: It almost has an onomatopoeic quality, in that it almost captures the sound of the kookaburra laughing.
(Soundbite of kookaburra laughing)
Mr. WESTWOOD: It's a very typical Australian sound - a bush sound, that's why I think it's really mean-spirited to say, hey, this is theft, if it's something that comes from nature.
ULABY: No such romanticizing from Adam Simpson, whose legal firm represents the music publishing company Larrikin that owns the rights to the song.
Mr. ADAM SIMPSON (Attorney): "Kookaburra" is a copyright work, just like any copyright work, and there are laws surrounding how it can be used.
ULABY: Simpson says laws governing what we'd call fair use in the U.S. for sampling music are more restrictive in Australia. He argues that "The Kookaburra Song" appears significantly in "Down Under."
Mr. SIMPSON: "Kookaburra" is a four-bar song and over half of that song is used "Down Under," which is the test of law.
ULABY: Which is to say, two bars. Simpson says the publisher should collect royalties every single time the Men at Work song gets played, which he says is more frequent than you think.
Mr. SIMPSON: It is a song that is still heavily used in advertising. Its heavily used in film. For example, it was in "Finding Nemo." It was in "Kangaroo Jack" and I think it was also in a "Crocodile Dundee" film.
ULABY: Right now, 100 percent of "Down Unders" royalties goes to the two Men at Work who wrote it. One of whom plays the offending flute. But the group has basically been defunct for decades. So, is suing the musicians really worthwhile?
Mr. SIMPSON: Yes, it is. And I can't go into any details because the financials, of course, are very confidential.
ULABY: Men at Work has done a few reunion shows in Australia quite a while ago. If they lose this lawsuit - or need to scrape up funds to settle - they could be doing a lot more.
Neda Ulaby, NPR News.
(Soundbite of song, "Down Under")
Mr. HAY: (Singing) Do you come from a land down under? Where women glow and men plunder?
NORRIS: Youre listening to ALL THINGS CONSIDERED from NPR News.
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