I’ll be following this item if it stays in the news. The holder of the copyright to “Kookaburra”, which I admit I thought was trad, is suing Men Without Hats for using it without permission in their 80s hit “Down Under”.
The Seattle Post-Intelligencer blog introduces the topic and provides sound samples.
I think they have a tough row to hoe. The lick in question is one measure. It is not the first measure of “Down Under”–you could argue that the descending run is the more memorable flute part. It is the first bar of “Kookaburra”, which I usually find a capella. The melody clearly suggests a major key, while “Down Under” plays the pattern over a minor key except before the third verse. The actual melody sung in “Down Under” (such as it is) is not a copy, though the repetitive part of it is a kind of inversion. The lyrics of the two songs are on the same continent but have little else in common.
By contrast, Harrison’s “My Sweet Lord” has the following in common with “He’s So Fine”: The chord progression is the same. The melody is substantially the same measure for measure. The backup vocals occur at the same points, with the same harmony, on similar syllables that have similar meaning, in the style of a gospel choir. The overall gist of the lyrics is of seeking someone. The tempo is similar. There are differences, such as a B section in “He’s So Fine” not found in “My Sweet Lord”, one is a romantic song and the other spiritual, and Harrison’s emphasis on guitars over the Motown sound. That court case went on for years.
There is the possibility that Men Without Hats intentionally used a familiar folk tune to evoke the culture in a song about Australia, which could be considered a willful hijacking or an homage. (Edit: according to songwriter Colin Hay, it was the flute player–not either songwriter–who introduced the lick.)