Recorded music, music publishing
In October 2016, New Zealand’s High Court ruled that the National Party had infringed on singer Eminem’s copyright in Lose Yourself and awarded the rapper’s publisher NZ$600,000 (£315,000) in damages, saying that the political party’s use of a track titled ‘Eminem Esque‘ that was “sufficiently similar” to Eminem’s original song was infringement, noting that Lose Yourself was a “highly original work” and the “soundalike” version substantially copied it. Lose Yourself’ was composed by Marshall Mathers III (Eminem), Jeffrey Bass and Luis Resto (Eight Mile Style) in 2002.
The court said: 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.”
Now the two United States publishing companies that control and administer copyright for Eminem’s award-winning rap hit, Lose Yourself, are asking to have the award of damages increased. The advert was widely shared, but National Party is seeking a lower figure, saying Justice Helen Cull was wrong to accept evidence that the internet availability changed what would otherwise have been the expected fee for licensing the song’s use in a small territory like New Zealand. The political party are also critical of Justice Cull relying on the evidence of one expert in calculating damages, when three others gave conflicting evidence. Although it is clear the rights owners would have not been keen on licensing the music in a political context significantly increased, the National Party said the judge had been wrong to use unwillingness to allow the music to be used in a political context (or at all) as a reason to increase the “fee”. The publishers take the opposite view – the damages should have been increased because the party had benefited by using the music for a political purpose when they would not have been able to otherwise, and without paying for it.
No date has been set for the appeal hearing.
Eight Mile Style v National Party and others  NZHC 2603