COPYRIGHT
Music Publishing

 

New Zealand’s High Court has ruled that the National Party had infringed the copyright in Eminem’s iconic song ‘Lose Yourself‘ in a 2014 political campaign by using a ‘sound alike’ song and has awarded the rapper and his co-writers’ publisher NZ$600,000 (AU$535,000/ £315,000) in damages. 

The publisher filed proceedings against New Zealand’s then governing party in September 2014 for using a version of the chart-topping song Lose Yourself in an election campaign advertisement.

 

The key issue for determination by the Court was whether the “sound-alike” production track, called ‘Eminem Esque‘, was sufficiently similar to the 2002 music of ‘Lose Yourself’, so as to constitute a breach of copyright.  ‘Lose Yourself’ was composed by Marshall Mathers III (Eminem), Jeffrey Bass and Luis Resto (Eight Mile Style) in 2002. The composition is regarded by Eight Mile Style as the most valuable work in their catalogue and had only rarely been licensed for use, and never as part of a political campaign.

 

The High Court ruled that Eminem Esque was “sufficiently similar” to Eminem’s original song that it infringed copyright and that ‘Lose Yourself’ was a “highly original work” and that the infringing song bore only minimal differences to the original, 

 

The tensions between illegitimate copying versus permissive borrowing and the resulting

copyright consequences are at the forefront of this case.

To attract copyright protection under the New Zealand Copyright Act 1994 (the Act) a work must be “original.” There are three separate copyrights in ‘Lose Yourself’:  the original sound

recording, the lyrics and the music. Copyright is a property right that exists in original

works and it should be noted that this case concerned the copyright in the musical work  ‘Lose Yourself‘ and NOT the sound recording. 

The court analysis required consideration of the originality not just of the composition but also the various elements of the composition as not every part of an original work will necessarily be protected by copyright.

Cull J found ‘Lose Yourself’ also met the higher threshold of an original work in the case law.

Her Honour concluded:

[154] The distinctive sound of Lose Yourself is not limited by a “melodic” line, but is a combination of the other instruments, particularly the guitar riff, the timbre, the strong hypnotic rhythm and the recurring violin instrumentation and the piano figure. It is no coincidence that Lose Yourself received the 2003 Academy Award for Best Original Song. I find that Lose Yourself is a highly original work.

 

After reaching a conclusion on this issue the Court worked through a series of questions to

determine whether the three elements necessary to establish copying had taken place:

(a) Has ‘Eminem Esque’ substantially copied or reproduced ‘Lose Yourself’?

(b) Does ‘Eminem Esque‘ sound objectively similar to ‘Lose Yourself’?

(c) Is there a causal connection between ‘Lose Yourself‘ and ‘Eminem Esque’?

To that end the court considered the drum patterns, background chords and violin tones of each version, all of which it said bore “close similarities”: “The differences between the two works are minimal; the close similarities and the indiscernible differences in drum beat, the ‘melodic line’ and the piano figures make ‘Eminem Esque‘ strikingly similar to ‘Lose Yourself‘. ‘Eminem Esque’ substantially reproduces the essence of ‘Lose Yourself’. The parts of ‘Eminem Esque‘ used in the National Party’s campaign advertisements also substantially reproduce ‘Lose Yourself’.”

The court ruled that “Eminem Esque has substantially copied Lose Yourself” and Justice Cull said  “Eminem Esque sounds like a copy and is a copy of Lose Yourself and that the National Party committed three restricted acts amounting to copyright infringement. The Court found Eight Mile Style is entitled to damages on a “user principle” basis in the sum of NZ$600,000, with interest, from 28 June 2014. 

The publishers said after the ruling: “We find it incredible that the National Party went to such great lengths to avoid responsibility for using a weak rip-off of Lose Yourself. They knew we would not have permitted the use of the song in their political advertisement; however, they proceeded at their own risk and blamed others for their infringement.”

 

Eight Mile Style v National Party and others [2017] NZHC 2603

http://www.courtsofnz.govt.nz/static-files/Media-release-Final-25-October-2017.pdf

http://www.courtsofnz.govt.nz/static-files/Eight-Mile-Style-v-National-Party-final-25-October-2017.pdf

http://www.bbc.co.uk/news/world-asia-41744547