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(AP) SYDNEY - Australian rockers Men at Work on Friday lost their final court bid to prove they did not steal the distinctive flute riff of their 1980s hit "Down Under" from a children's campfire song. The High Court of Australia denied the band's bid to appeal a federal court judge's earlier ruling that the group had copied the signature flute melody of "Down Under" from the song "Kookaburra Sits in the Old Gum Tree." "Kookaburra," a song about Australia's famous bird of the same name, was written more than 70 years ago by Australian teacher Marion Sinclair for a Girl Guides competition. The song went on to become a favorite around campfires from New Zealand to Canada. The wildly popular "Down Under" remains an unofficial anthem for Australia.
If you ever had a birthday party at Chuck E. Cheese's, you probably have endless fond memories: the cardboard pizza, the #ty, half-broken arcade games and soda served in the tiniest paper thimbles ever created. OK, maybe it kind of sucked in retrospect. But it could have been worse. For example, your parents could get a subpoena to appear in court for being part of a public performance of "Happy Birthday to You," which as it turns out is totally illegal.
What Did I Do?!
It's copyrighted. Usually that would only affect people who are singing it while attempting to make a profit (the lady your dad hired to jump out of your birthday cake, for instance). However, the American Society of Composers, Authors and Publishers (ASCAP) requested that the Girl Scouts pay royalties for "Happy Birthday to You," and other songs they'd been singing around the campfire without a single stripper, or paying customer in attendance.
Presumably thinking that this was a prank by the girls from the camp across the lake, the Girl Scouts consulted an attorney who found that the law applied to any "public performance." Going by the strict letter of the law, you have to pay anytime you sing the song "where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."
The first version of the popular birthday song, titled "Good Morning to All," was composed way back in 1868 by sisters Mildred and Patty Hill, before the Summy Company copyrighted it in 1935, together with the now-famous lyrics. Today, that copyright belongs to Time Warner, meaning that any restaurant or movie that wants to use the song where everyone can hear it must pay the company royalties.
Artists have a right to be compensated. Or, if they're dead and have no descendants, a faceless corporation has the right to profit from their work.
You can still sing it legally in the privacy of your own home, and you will probably get away with singing it out in the open, provided that you're not on a reality TV show. Of course, if you're anything like most small business owners, you'll just pay up because you don't want to face Time Warner in court. Enough of them pay royalties that the song garners a cool $2 million dollars a year in royalties. Or if you want to be extra safe, you can do what many restaurant chains do and just invent your own special version of the lyrics, assuming you don't mind looking and sounding like a stupid asshole.
As you may imagine, the PR #storm that followed the girl scouts fiasco caused ASCAP to back away and deny they were serious about that whole paying royalties thing. And a private birthday party getting ratted out is probably much less likely than a giant organization like the Girl Scouts. Of course, that cuts both ways, since in the case of the Girl Scouts it was public shame, not the law, that stopped any legal action. Don't count on it to save you.