COLIN Hay has revealed he believes the stress from the copyright case over Men at Work’s Down Under contributed to the death of both his father Jim and bandmate Greg Ham.

The former Men at Work singer has opened up in a new documentary on his career called Waiting For My Real Life.

Hay’s father Jim died in Melbourne in 2010 aged 87.

The high profile and controversial court case, claiming the flute line in the 1981 hit Down Under was taken from iconic children’s song Kookaburra, started the year before.

In the film Hay says his musical father had heard the earliest version of Down Under and “knew the truth” of it all.

“I was trying to calm him down,” Hay says. “He knew that when I wrote the song that there was nothing appropriated from anybody. He was incensed. Smoke would come out of his ears.”

As the court case dragged on, Jim Hay’s health deteriorated. His son was touring in Glasgow when he passed away.

“He was getting older, he was getting stressed,” Hay says. “I can’t make any claims that this (court case) was the reason that he died, but I do feel instinctively it contributed to knocking him off his perch.”

The copyright claim centred around the flute riff played by Men at Work’s Greg Ham.

Ham, who did not write Down Under, was devastated by the high profile court case and his role in proceedings.

The musician had reportedly fallen back into alcohol abuse and was quoted as saying: “I’m terribly disappointed that’s the way I’m going to be remembered — for copying something.”

Ham died of a heart attack in April 2012 in his Carlton North home, aged 58, with friends saying the lawsuit was haunting him.

“Gregory felt terribly guilty about having played the line, unconsciously or not, he goes downhill and can’t seem to conquer whatever demons were going on,” Hay says in the documentary.

“And he goes, he dies. It’s blood, it’s people you love who you’re losing over this litigation.”

The lawsuit had an unusual origin.

In 2007 TV show Spicks and Specks had a children’s music themed episode. One of the rounds involved picking a topic, and captain Alan Brough opted for Nursery Rhymes. Contestants, including former members of Hi-5 and the Wiggles, were played Down Under and asked which Australian nursery rhyme the flute riff was based on.

Eventually they picked Kookaburra, all genuinely surprised when the link between the songs was pointed out.

Kookaburra was written by Melbourne schoolteacher Marion Sinclair in 1932 and was first aired in public two years later as part of a Girl Guides jamboree in Frankston.

Sydney musician and author Trevor Conomy has just published a book called Down Under: The Tune, The Times, The Tragedy based around the song in general and the lawsuit in particular.

“Marion Sinclair said things like `It came to me from above, I don’t own it’.” Conomy says of Kookaburra.

“She had to get prompted to go to APRA (Australasian Performing Right Association) to register the song. That was in 1975, the song had already been around for 40 years but she never expressed any great interest in any propriety to the song.

“She died in 1988, you presume she had heard Down Under, especially when it was used so often around the America’s Cup win in 1983, but no one heard a peep out of her about any similarities. She died, the song went to her estate and Larrikin bought it from her estate and got down to business.”

The publishing rights to Kookaburra were purchased from Sinclair’s estate in 1990 for just $6100.

Norman Lurie, managing director of Larrikin Music Publishing, tracked down people using the song who wrongly assumed it was in the public domain.

“Lurie’s main brief was to look over all the chart music that had been printed all over the world, because Kookaburra had been used in books for people learning flute and recorder,” Conomy says.

“He’s well within his rights to say you can’t publish that without royalties. In the Down Under case though, how was Norman Lurie losing anything from Down Under? It just did not seem fair. Nobody should have lost anything.”

Lurie initially wanted 60 per cent of Down Under’s profits, even though the Kookaburra riff is heard for just a few seconds in the song.

Written in 1978 and first aired at Richmond’s Cricketers Arms Hotel, an early version of Down Under was released in 1980 as the b-side to Men at Work’s debut Keypunch Operator.

While that version has a low-key reggae vibe, the track was totally re-recorded for their debut album.

Down Under made No. 1 in Australia in December 1981, then topped the UK, Canada, Ireland, Denmark and New Zealand charts in 1982 and hit No.1 in the US in January 1983. It sold two million copies in the US alone. The album that housed it, 1981’s Business as Usual, sold 15 million copies and spent 15 weeks at No. 1 in the US, also featuring another US chart topper, Who Can It Be Now.

As the court case dragged on Larrikin were initially awarded five per cent of the song’s profits, but only from 2002 onwards, in line with Australian royalty law.

“They were originally after 60-per-cent of the copyright of Down Under, which was a ludicrous thing as far as I was concerned,” Hay says in the documentary. “I feel dumb because the whole litigation took place. I think well ‘How did it get to that point?’ Surely we could have figured it out without going to court. But then I think about it and well, if somebody wants 60 per cent of your song and there’s two bars of their song, it just didn’t make any sense. So you have to defend it.”

In February 2010, Men at Work appealed, and eventually lost.

In the end, Larrikin won around $100,000, although legal fees on both sides have been estimated by Hay to be upwards $4.5 million, with royalties for the song frozen during the case.

“After five years of litigation, it’s four and a half-million dollars chasing $100 grand,” Hay said. “So they didn’t really win, they just lost less than us.”

Hay still performs Down Under, refusing to let the court case spoil his song and the public’s enjoyment of it, and made versions for Qantas and Telstra ads with no hint of the flute line.

Conomy’s book goes into detail of the lawsuit in layman’s terms.

“Most people think the decision was unfair to say the least,” he says. “Even when you’ve heard the Kookaburra part and then Down Under you wonder if you did know the connection or not, whether it was subliminal or it’s been so camouflaged in the song you’re still not sure if you can hear it. It was tabled as sheet music in court, you cannot deny that stream of melody is in that song, but the whole thing feels wrong.”

As well as a history of the band’s swift rise and fall, Conomy’s book also touches on Ham’s tragic death.

“That song has almost led to his demise, like a classic Shakespearean tragedy.” Conomy says. “Something that he did when he was younger came back and bit him. Worse than that, he was innocent. He’d done nothing maliciously. He didn’t write the song, he didn’t profit from the recording. Everything about it was horrible.”

The Hay documentary has (separate) interviews from all remaining members of Men at Work — drummer Jerry Speiser, bassist John Rees and guitarist Ron Strykert, who co-wrote Down Under with Hay but was not required to go to court.

While the band split bitterly, and the original line-up never reformed (Hay and Ham toured as Men at Work in the late ‘80s) the relationship between Hay and Strykert had deteriorated the most since he left Men at Work in 1985 during the making of the band’s third and final album.

In 2009, Strykert was arrested in LA for making death threats to Hay, reportedly over a dispute over royalties — he later denied making the threats.

The documentary’s director Nate Gowtham tracked Strykert down — while he had lived in Tasmania he’s now in Montana in the Western United States.

The guitarist says in the film the band’s split was partially due to poor communication between members.

“Getting in touch with Ron was more challenging than getting him to do an interview,” Gowtham says. “Although that was challenging too, he lives out in Montana in a beautiful and very remote area, one of the more remote areas I’ve travelled to. But nothing really negatively charged (came out of the interview), ultimately.”

Hay also discusses the demise of Men at Work in 1985 after a popularity so intense American radio stations were forced to have “Men at Work free” weekends.

“This band was a complete dream of mine and it had let me down, I felt resented and I felt betrayed,” he says. “With that particular bunch of people involved there was too much psychological emotional fragility. It was something great and huge which was essentially kept small by small mindedness. I’m certainly not guiltless, but at the time this was the information I have and this is the decision I’m going to make. You look back and think that was the dumbest f — ing thing.”

Waiting For My Real Life is expected to get further cinema sessions before a planned release on DVD and online.

Down Under: The Tune, The Times, The Tragedy is out now from Affirm Press, $30