Eight Mile Style v National Party

A summary of the copyright case Eight Mile Style v National Party was released today.

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 National party have indicted they will make a claim against the supplier of the music they used.


What the case is about

The key issue for determination by the Court was whether a “sound-alike” production track, called Eminem Esque, used by the National Party in its 2014 election campaign advertising, is sufficiently similar to the 2002 music of Eminem’s hit song, Lose Yourself, so as to constitute a breach of copyright.

Lose Yourself was composed by Marshall Mathers III (Eminem), Jeffrey Bass and Luis Resto (all called Eight Mile Style) in 2002. The composition is regarded by Eight Mile Style as the most valuable work in their catalogue and has only rarely been licensed for use, and never as part of a political campaign.

Eight Mile Style, who own the copyright in Lose Yourself, sought damages against the
National Party after Eminem Esque featured in Party advertisements played on television, the internet and at a Party conference in the lead up to the 2014 election. Between 20 to 30 August 2014, the advertisements, with Eminem Esque synchronised to them, were played 186 times on New Zealand television. Eminem Esque was also played eight times during a 15 minute opening broadcast on TV1, occurring on 23 August 2014.

This proceeding is being heard in two parts. The first, a hearing to determine the liability of the National Party and the quantum of damages, if any, was held in the High Court at
Wellington over eight days between 1 May and 12 May 2017. The second part concerns a
separate hearing to determine third party liability, if any.

This decision deals with the first hearing only, namely, the issues of liability and quantum against the National Party as the alleged publishers of the infringing work. The third-party liability hearing awaits the outcome of this trial.

The Court’s key rulings

Is Lose Yourself an original work capable of protection under the Act and were the
elements of Lose Yourself referenced in Eminem Esque also original?

The Court found that copyright does subsist in the musical work Lose Yourself as it meets the definition and low threshold of being an original work under the Act.

Although Lose Yourself met the low threshold of an original work under the Act, the Court was also required to determine how original the work is and whether there are features in the work that are not original. To establish infringement, there must be substantial copying of the original parts of the work. Any copying of a part of the work, which by itself has no originality, will not normally be protected.

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.

Was there copying of Lose Yourself?

The Court found Eminem Esque was a copy of Lose Yourself for three reasons.

First, Cull J determined Eminem Esque has substantially copied Lose Yourself. 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.

Second, Eminem Esque is objectively similar to Lose Yourself as there are minimal
discernible differences. The inquiry into objective similarity is a test of hearing and ear recognition; Eminem Esque sounds like a copy and is a copy of Lose Yourself. Eminem Esque was designed to “sound like” Eminem and Lose Yourself as production music and a sound-alike track.

Finally, there is a causal connection between Lose Yourself and Eminem Esque. It was no
coincidence that the works sounded the same and the undeniable inference to be drawn from the evidence is that the composer of Eminem Esque had Lose Yourself in front of him at the time of composition. The similarities between the works overwhelmingly support a finding of copying. The original title Eminem_abbr; the title of Eminem Esque; and the fact that Eminem Esque is a sound-alike track, reinforces the finding that there is a causal connection between the two works, supporting a finding of copying.

Did the copying constitute a breach of the Act?

The Court found the National Party committed three restricted acts amounting to copyright infringement.

The National Party communicated a copy of Lose Yourself to the public without licence;
authorised the copying of Lose Yourself; and authorised the use and/or deployment of the relevant advertisements and opening broadcast.

Was Eight Mile Style entitled to damages?

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.

This sum was determined under the user principle, being the hypothetical licence fee that would reasonably have been charged for permission to use a copy of Lose Yourself in the National Party’s campaign advertising.

The relevant factors considered in assessing this hypothetical licence fee included that Eight Mile Style have retained exclusive control of licensing and rarely grant permission to use Lose Yourself in advertising; the purpose for use in the present case was political use in an unassociated country, which is not what Eminem or Eight Mile Style would endorse; the use was confined over 11 days, with 186 television viewings, as well as being uploaded to the internet; and the National Party wanted the sound of Lose Yourself or an equivalent.

Although copyright infringement did occur, the National Party’s actions were taken after
receiving professional, commercial and media advice and were not reckless or contumelious of the rights of the copyright owner. No additional damages are awarded.


Media Release

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document.

Full Judgment

This judgment of the High Court includes links to audio and video files that were adduced in evidence by the parties during the hearings. They are made available to assist in understanding the judgment. The re-use, capture, storage, re-editing or redistribution of this footage in any form is not permitted.

 

 

15 Comments

  1. patupaiarehe

     /  October 25, 2017

    As much as I dislike the Nats, surely they used ’eminem esque’ in good faith. I can’t imagine them deliberately violating copyright, they are not that stupid. Surely ‘Eight mile style’ should have taken legal action against the distributor, or were the Nats just an easier (& wealthier) target???

    • Blazer

       /  October 25, 2017

      its not their first offence though Patu..God knows why this Eminem tune was chosen.They have a fall guy,but their inherent arrogance is always..at play.

      • Oh for pity’s sake. Imagine anyone in the Nats even knowing who Eminem was. They used it in good faith. It’s no biggie anyway. In the real world litigation happens continuously. They’ll litigate against the companies that both composed and have it to them. Worst case scenario they’ll have a whip around and pay it off with a few phone calls.

    • PDB

       /  October 25, 2017

      As the judgement said: “Although copyright infringement did occur, the National Party’s actions were taken after receiving professional, commercial and media advice and were not reckless or contumelious of the rights of the copyright owner. No additional damages are awarded.”

      Obviously they will try to get the money back by taking the crowd to court they bought the copied song from.

      • Blazer

         /  October 25, 2017

        aren’t they in recievership..in the time honoured tradition of ..’smart businessmen’?

      • The next stage is to determine who is liable for the breach of copyright and the award.

        The National party may or may not end up having to pay anything. They did some due diligence but the court will test whether they did enough pre-checking.

        • robertguyton

           /  October 25, 2017

          To quote Keeping Stock,
          “Oh dear, oh dear, oh dear!”

        • patupaiarehe

           /  October 25, 2017

          The next stage is to determine who is liable for the breach of copyright and the award

          Shouldn’t that have been the ‘first stage’?

  2. lurcher1948

     /  October 25, 2017

    I have 20 cents to help the losers pay there $600000 bill but i want a receipt

    • Corky

       /  October 25, 2017

      You keep that and shout yourself, Lurchy. You deserve it.

  3. lurcher1948

     /  October 25, 2017

    Damn I’m willing to go to 50 cents to help them out but only with a receipt, i don’t want to be ripped off…
    https://youtu.be/7DwJoYiDYFQ, a song to make Steven Joyce feel better in a slightly legal way…

  4. Gezza

     /  October 25, 2017

    I imagine we won’t be seeing the phrase “pretty legal” coming into vogue except in the context of this particular case in future. Seems unlikely to end becoming a popular & precise legal term either.

    • patupaiarehe

       /  October 25, 2017

      The first time I heard the term “pretty legal”, I had a chuckle. Thanks for giving me another…

    • patupaiarehe

       /  October 26, 2017

      Don’t praise Eminem. Listen to the clip below, and watch it, from beginning to end. It’s either real, or it isn’t. Either way, it’s fucking terrible