The Collection

Kookaburra Sits on the Old Gum Tree

(Warren Fahey). Firstly, let me state that I had nothing to do with the legal case involving Men At Work and their use of a riﬀ from the children’s rhyme ‘Kookaburra On An Old Gum Tree’. It seems I have to use every opportunity to state this fact, even all the years later, as I still receive abusive messages from people across the globe who assume I was the one steering the legal action.

My record label was Larrikin Records, my music distribution company was Larrikin Entertainment, and my performance group was The Larrikins. I sold Larrikin Music to Music Sales Australia years before the publisher bought ‘Kookaburra’ and eventually sued Men At Work’s publisher and record label.

Despite vigorously defending myself, I guess I had done such an eﬀective job in using ‘larrikin’ for my various music endeavours I was guilty by association. Thankfully, many Australian musicians and the general public came to my defence, but it continues to be a thorn. Ouch!

I would never have sued over this issue, and I am on public record saying I disagreed with Larrikin Music/Music Sales in their pursuit of the copyright. I always believed it should have been resolved by handing the song to the public domain.

The following pages oﬀer further details on the infamous trial and some of Marion Sinclair’s other works.

The Marion Sinclair story

Parodies

Correspondence Files

Songs From An Old Gum Tree

Background

KOOKABURRA SITS ON AN OLD GUM TREE – THE MARION SINCLAIR STORY

Although I never met Marion Sinclair it appears I have been given the task of righting a small wrong in regards to her song ‘Kookaburra’.

As the founder of Larrikin Music, the music publishing company that was to eventually sue ‘Men At Work’ over inclusion of a section from the tune in the song ‘Down Under’, I found myself in an inescapable and vulnerable position.

The legal outcome is now history but, for the record, I state what I said at the time of the hearing.

LARRIKIN RECORDS AND LARRIKIN MUSIC FOUNDER SPEAKS OUT
MEDIA RELEASE

The founder of Larrikin Records and original owner of Larrikin Music, Warren Fahey, has suggested a way of resolving the dispute over the use of Kookaburra Sits in the Old Gum Tree by Men at Work in its iconic: Land Down Under hit.
Fahey wants the copyright owners, Larrikin Music, to “gift” the song to Australia, arguing that most Australians believe they already have public domain ownership.

Having remained silent during the lead-up to the now infamous court ruling on Men At Work’s use of the Marion Sinclair children’s composition, Kookaburra Sits On An Old Gum Tree’, Larrikin’s founder, the cultural historian, Warren Fahey, said today he had been forced to enter the fray.

“The past week has seen thousands of emails, letters to the editor, radio commentary and internet forums criticising the judgement,” Fahey said.

“Many of these incorrectly criticise Larrikin Records and myself as the protagonist asking, “how could someone so dedicated to Australian music do such a thing?”

Warren Fahey sold Larrikin Music to Music Sales Corporation in 1988 and, in 1995; Larrikin Records was sold to Festival Music. Warren’s internationally recognised folk ensemble, established in 1969, is still called The Larrikins.
He comments, “The Larrikin brand has certainly been tarnished by what many see as opportunistic greed on behalf of Larrikin Music/Music Sales.”

The Court has ruled that Larrikin Music indeed owns the ‘Kookaburra’ song and that Men At Work used part of that melody in their internationally successful song ‘Land Down Under’.

Although many dispute this ruling it is now legally sanctioned. The point at issue here is a cultural copyright issue, says Fahey. “Like ‘Happy Birthday’ this song is seen as being in the Public Domain. The fact that there are so many parodies in circulation and that Australians have been singing the ditty for so long is testament to this anonymous circulation.

Fahey continues, “Happy Birthday is a good comparison because it was written under similar circumstances and entered the oral tradition before being taken up by a commercial publisher. Composed by two American kindergarten teachers in 1893 as ‘Good Morning To All’ the original composers never claimed copyright or publishing. Even when published as sheet music in 1912 it was never claimed by composer of publisher. In 1935 a publisher named Summy Music published an arrangement, changing the title to ‘Happy Birthday To You’, and credited two new composers.

By this time the song had really entered Public Domain. In 1990 Warner Chappell Music purchased Summy Music for $15,000,000 and has tried, unsuccessfully, to enforce its publishing right (which expires in 2011). Several Law Professors in the USA have already defended the song as Public Domain and any publishing claim unenforceable.”

“The above reinforces the ‘Kookaburra’ claim of Public Domain in Australia. Copyright is a strange beast and Public Domain even stranger.

Australian musicians are rightfully angry about the decision because the creation of music is always influenced to some degree by other music. This ruling is seen as a threat to musical creativity and, to some extent, the Australian spirit of larrikinism.

Warren Fahey has what he says is a solution. “Larrikin Music, as the legitimate publishers of the Marion Sinclair song, have a right to claim for its use – even if many see this Men At Work claim as inappropriate and aggressive.

“As a cultural historian and one who has specialised in music I call upon Larrikin Music to ‘gift’ this song to the nation – which obviously already believes it has public domain ownership of it.

“Larrikin Music should be entitled to collect an appropriate settlement if they see fit but then should allow the song its own life so as to ensure future young Australians can sing and perform it for generations to come, without limitation.
“As an assessor for the Commonwealth Cultural Gift Program I would suggest that there might even be an attractive financial benefit to Larrikin Music from such a cultural gift. Such a gift would also been seen as an appropriate larrikin action!”

Needless-to-say the international music publisher, Music Sales, did not ‘gift’ the song to the nation. They were granted a 5% royalty collection, which, one suspect, did not cover their legal costs and general expenses in the overall bunfight. As always, the lawyers were fattened.

What did come out of the legal stoush were words of support for my role and the idea of gifting the song. Whatever the outcome the fact remains that this simplistic ditty (and it is incorrect to call such a short verse, a ‘song’) had already entered the public domain. This would have pleased its creator, Marion Sinclair. Two people, both personal friends of Marion, wrote to me subsequent to the court result. Ninety-one year’s old (yet young!) Jean Mann of Rose Park, South Australia, knew Marion extremely well and was one of the last people to see her before her death. The other contributor to my files was Bette Crouch who contacted me (via her son-in-law Trevor King) to tell me about some songs she had been sent by Marion.

Marion Sinclair was born in 1900. She always wanted to work with children and became a music teacher at Toorak College, a girls’ school in Melbourne, which she had attended as a boarder. In 1920, she began working with the school’s Girl Guides Company. One Sunday morning in church, in 1932, Marion Sinclair had a sudden musical inspiration, and dashed home to write the words down. “Kookaburra” was entered in 1934 into a competition run by the Girl Guides Association of Victoria, with the rights of the winning song to be sold to raise money for the purchase of a camping ground, eventually chosen as Britannia Park. The song was performed for the first time in 1934, at the annual Jamboree in Frankston, Victoria at which the Baden-Powells, founders of the Scouting and Guiding movements were present. (Adelaide Sunday Mail newspaper 1982)

The song became a favorite in Girl Guide, Boy Scout and bushwalking circles. It also achieved international circulation and was included in several songbooks. The song even played an important role in the 2006 Doctor Who episode “Fear Her”.

The song is usually sung as a round. This means it is repeated endlessly, looped. The main reason for rounds is that repetition allows everyone to join in and harmonise.

MARION SINCLAIR RECORDS ARE AVAILABLE

[Microfilm : 1900 – 1988]
Records of Miss Marion Sinclair consisting of her autobiography (original and typescript copy), original music scores, poetry, papers relating to the Girl Guides, Y.W.C.A., various schools and colleges, family papers, photographs, correspondence and miscellanea. Includes literary manuscripts.
1.3 m State Library of South Australia, Mortlock Library of South Australia
PRG 670

Background

KOOKABURRA SITS ON AN OLD GUM TREE – PARODIES

“Kookaburra” parodies have remained popular in Australian schoolyards for over four decades.

The following are parodies collected by Warren Fahey between 1978-2010

Kookaburra sings on electric wire
Tears in his eyes and his pants on fire
Ouch kookaburra ouch kookaburra
Hot your bum must be!

Kookaburra sits in the old gum tree,
Eating all the gum drops he can see.
Laugh Kookaburra, Laugh Kookaburra
Leave some there for me.

Kookaburra sits on an electric wire
jumping up and down with his pants on fire.
Ouch Kookaburra, Ouch Kookaburra,
Hot your pants must be.

Kookaburra sits in the old gum tree
Merry, merry king of the bush is he
Laugh, Kookaburra! Laugh, Kookaburra!
Gay your life must be

Kookaburra sits in the old gum tree
Eating all the gum drops he can see
Stop, Kookaburra! Stop, Kookaburra!
Leave some there for me!

Kookaburra sits in the old gum tree
Counting all the monkeys he can see
Stop, Kookaburra! Stop, Kookaburra!
That’s not a monkey that’s me

Kookaburra sits on a rusty nail
Gets a boo-boo in his tail
Cry, Kookaburra! Cry, kookaburra!
Oh how life can be

Kookaburra sits in the old gum tree
With a toothache big as can be
Ha, Kookaburra, ha, kookaburra
Didn’t save any for me

Kookaburra flies from the old gum tree
Flapping his wings for all to see
Laugh, Kookaburra! Laugh, Kookaburra!
Flying oh so free.

Kookaburra lands in the old gum tree
Fluttering his wings for all to see
Laugh, Kookaburra! Laugh, Kookaburra!
Happy as can be!

Kookaburra sits on the electric wire,
Tears in his eyes and his pants on fire,
Ouch Kookaburra, Ouch Kookaburra,
Hot your tail must be.

“Kookaburra sits on the railroad track
Along comes a train and smashes him flat
Poor kookaburra, poor kookaburra
That’s the end of that!”

Kookaburra sits on the electric wire
Jumping up and down with his pants on fire
Scorched kookaburra, scorched kookaburra
Gay your life must be.”

Kookaburra sits on the railroad track
Better get off or he’ll be flat
Run, Kookaburra run, Kookaburra-
(at this point slap both hands together to make a loud noise)
Well that’s the end of that
(Pretend to wipe hands clean/dust off hands)

Kookaburra sits in the old gum tree
Eating all the gum drops he can see
Stop, Kookaburra stop, Kookaburra
Save some of those for me.

Kookaburra sits on the telephone wire
Jumping up and down with his pants on fire
Help! Fireman. Help! Fireman.
Put my undies out.

Kookaburra sits in the old gum tree
Watching Mickey Mouse on Channel Three
Poor, Kookaburra. Poor, Kookaburra.
A waste your life must be.

“Kookaburra sits in the old gum tree,
He fell out and broke his knee!
Ouch, Kookaburra! Ouch, Kookaburra–
Oh, how life must be.

Kookaburra sits on a railroad track,
He’d better run or he’ll go smack!
Run, Kookaburra! Run, Kookaburra– *Clap!*
(slower) That’s the end of that. *Wiping hands.*”

Kookaburra sits in the old gum tree
Screwing all the birds he can see
Stop! Kookaburra, Stop! Kookaburra
That one’s got VD.

Correspondence Files

MARION SINCLAIR TO JEAN MANN 27/6/1981

With Trevor King

KOOKABURRA SITS ON AN OLD GUM TREE – CORRESPONDENCE FILES

I am including various correspondence between my two informants and myself however, more importantly, correspondence, usually handwritten, between Marion and friends. I am doing this to provide an insight into Marion’s life and attitude to her music.

Jean Mann graciously provided me with copies of correspondence she maintained with Marion Sinclair. Some was of a personal nature involving family issues but most related to Jean’s use of Marion’s music in her theatrical endeavours.

CORRESPONDENCE FROM JEAN MANN 29TH OCTOBER 2010-11-05

Hello Warren

Thank you very much for your interest and help. It has been, and is, much appreciated.

I’d be delighted to have you use anything I can send.

You didn’t mention having or not having the ‘Six Songs from an Old Gum Tree’.
(These songs have never been published.)
Would you like me to scan and send them by post?
They are all in Marion’s handwriting … diligently written on an aged writing pad. A fresh page for every song!

I have the words and music for ‘Ringtail’, Wallaby O’ and ‘The Pallid Cuckoo ‘. They can also be forwarded.

The music for ‘Koala’, ‘Travelways’ (Kangaroo) ‘Missis Platypus’, and ‘Birrahlee’ (Aboriginal Baby Girl) is escaping me at present.   I’ll have another search in our store-room for the missing trio!.

I should not have told you my age, although you, as a non mathematician, could have easily worked it out!. .
Please do not slot me into an ‘over 90 box!’…. even though I have painted my coffin and, when my husband looked at it said, “You’ll only need a string of beads. It looks like a Hippie Panel Van.”   And it does!

I ‘ve played Croquet for over forty years and still play twice a week.
I belong to the SA Writers Centre and still a member of the SA Writers’ Theatre.

I might look old but am very active and this project on behalf of Marion … knowing how she felt … and would have been horrified if she could have seen the newspaper headlines earlier this year… has brought me in touch with some very interesting people …. one, of whom. is you.

Thank you again.
Jean Mann

EMAIL CORRESPONDENCE 20TH OCTOBER 2010 JEAN MANN TO WF

Hi there
Yesterday I posted a large envelope containing one letter with two enclosures to your Private Box Number in Sydney.

After reading your history I feel sure you will be interested in the enclosures .

One is a copy of the above Round with music and words handwritten by Marion Sinclair.
It is dated 15/6/78. She wrote it out for me to use in a children’s play.
Kookaburra had flown and been sung all over the world, as Marion said, but had never before, been in a play.

The second enclosure is a copy of a card with a gum tree and two Kookaburras.
Marion gave permission for her round to be printed on the front.
5,000 cards were printed … all proceeds to The Helping Hand, North Adelaide, where she lived.

Unfortunately, as Marion quotes, in a letter to me dated 17th May 1985.

‘ they are printed with the very common error of Kookaburra sitting on THE old gum tree instead of ‘An old g.t.’   This is possibly a detail, but it cost me a good deal of thinking to make a decision when the words were written, simple tho’ it may be. ‘An’ is an easier singing word than ‘The’ which was what decided me.’

Marion has crossed out ‘The’ and written ‘An’ over the top.

I would love to ‘right the wrong’ that has crept into this well known song and, as I said, after reading your history I feel sure you are the only person who can do it.
If Larrikin Music could print the correct words with their copyright music, before it is hopefully ‘gifted’ to the nation, as you suggest … wouldn’t that be great!

Cheers
Jean Mann

EMAIL CORRESPONDENCE 20TH OCTOBER JEAN MANN TO WF

Hello Warren

It sounds as if you already have the envelope. Good work from the Post Office
As I wrote in the letter … I have been down a few tracks after the headlines hit the paper.
One was with Richard Mellows, President of the SA Law Society. He writes a column ‘Point of Law’ in The Advertiser every Monday. One article was headed ‘The clash of two Musical Icons ’19th July 2010.

I sent him similar enclosures to those I sent you and he did say in reply. … He was ‘absolutely delighted’ to read the ‘fascinating letter’ re his column and he ‘particularly enjoyed’ reading Marion’s letter to me in 1985 in which she points out the wording commonly used and her reason for choosing ‘an’ rather than ‘the’.
He went on to say he regretted not having any suggestions, but ‘perhaps a letter to Larrikin’ would not go astray given they have the copyright to the music and the words would often accompany it.’

I thought you would be interested in that ‘side-track’.

Another was to a friend who just happened to have legal friend, Judy Harris, tied up with the Girl Guides in SA.
Being a Guide myself from way-back I thought the Guides and Scouts might be of help.
My friend had an email from Judy Harris only today! This is Judy’s reply :

Thanks for the email. I still have the papers you gave me. I did follow up the Kookaburra lyrics as far as I could – I emailed the national publications manager of Girl Guides Australia and copied in the Chief Commissioner, suggesting that we should communicate the message (re correct lyrics) to States. I don’t know what if anything has been done, but I’ve certainly done my best! I will definitely keep Jean in mind for interviews. Things have been a bit crazy in the past few months as there are so many additional programme initiatives to try and fit in, for our Centenary of Guiding year, but I am hoping that things will calm down soon!!

Kind regards    Judy Harris

Of course, I know you don’t like maths, but you must be able to add up and, as I was a Patrol Leader of the Galahs in 1934, I am no chicken.. What has this 91 year old let herself in for?   Judy wants me to talk to her Guides! Help!

If Marion only knew.   She obviously never believed in wasting paper and, as her writing is very small, it is a touch difficult to read. .When I have time, I’ll try and find the Six songs from an old gum tree, or have you already copies of them?   I had the original large manuscripts that naturally had to be down-sized for a play script but unfortunately the originals have disappeared and the cut-down size is a trifle messy. I’ll try and get them in better shape if you haven’t already got them.  Ringtail (possum) is OK and I should be able to find Wallaby-O .

Please let me know if you want them and I’ll check with a local Photo-copier to see what he can do..
Jean

Correspondence from Marion Sinclair to Jean Mann 27/6/1981

In a separate note from Jean Mann to WF Jean makes the following comments:

The play Marion mentions here is The Billabong Circus and it was about to have its world premiere at the Brisbane Arts Centre. Marion need not have worried. Her music was OK, especially for my so-called lyrics ‘Singing Rabbit’ and ‘Possum’ but the play wouldn’t have got first prize although the children loved it.

I flew up from Adelaide and Tracy did the same from Sydney. We looked at each ither after the performance and shook our heads. It needed a re-write, especially in the middle.

This play continued to be staged across Australia. WF