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Lose yourself FT. Eminem and the New Zealand National Party

August 28, 2017


Partners Richard Watts

Intellectual property Government reform and public policy

The high profile legal battle over Eminem's rap song "Lose Yourself" came before the High Court in May this year. As the country eagerly awaits the court's decision and the politicians are fully into a fresh election campaign, this case highlights the complexities of the assessment of copyright infringement in relation to a musical work. This decision will be important for New Zealand, as we currently have limited local law in this area.

What's happened?

In 2014, during the last general election, the New Zealand National Party (National Party) used a rowing-themed televised advertisement. The advertisement featured a backing track, called "Eminem-esque", which is at the centre of the dispute. A right to use the track was purchased from Beatbox, an established music library. As its name suggests, the track bore similarities to Eminem's chart-topping hit "Lose Yourself".

Eight Mile Style is the owner of copyright in the musical work, "Lose Yourself". It has alleged copyright infringement, asserting that the similarity between "Eminem-esque" and "Lose Yourself" is so great that the National Party's use of "Eminem-esque" is infringing.

The National Party believed that "Eminem-esque" would be free from any copyright issues because it was purchased from a licensed music library. As a result, the National Party has argued that the infringement, if any, was accidental as it purchased the track in good faith. A number of other parties in the chain of rights were joined to the case with assertions that, if infringement is established, the party further up the chain is responsible.

Copyright in musical works

Under New Zealand law, copyright protection arises automatically when an original musical work is created. Copyright in that work is infringed when a substantial part of the work is copied. What amounts to a substantial part is a question of fact. The percentage or amount copied from a work is not determinative. Instead, the question is whether the part allegedly copied is qualitatively substantial, for example, if it is the essence or the most memorable part of the copyright work.

There is little judicial commentary in New Zealand about copyright infringement in relation to musical works. Overseas courts have held that copyright infringement for musical works does not depend on a note for note comparison. It is a question to be determined by the ear as well as by the eye. This involves an examination of the musical works as a whole to determine what is a substantial part.

In the United Kingdom, the Court of Appeal in 1934 considered infringement of copyright in Frederick Rickett's composition of the "Colonel Bogey March". In that case, twenty seconds of the four minute song was played in the background of a news segment. The court found that the use was infringing because anyone hearing it would be able to recognise the song from which it originated.

Similarly, the Federal Court of Australia in 2011 found that two phrases of a flute riff reproduced in Men at Work's song "Down Under" constituted a substantial part because the part reproduced was an essential element of the famous musical work, "Kookaburra Sits in the Old Gum Tree".

In contrast, the United States Court of Appeal recently found that Led Zeppelin's song "Stairway to Heaven" did not infringe the opening passage of Randy Wolfe's song "Taurus". In that case, jurors were not allowed to hear the original recordings and, as a result, copyright infringement was not found as there was not enough evidence to suggest "Stairway of Heaven" was substantially similar to the original elements of "Taurus". The case is now under appeal with the plaintiff claiming that the court erred in refusing to let the jury hear the full and complete composition of "Taurus".

There have been many cases in the United States about alleged infringement of copyright in musical works, some with seemingly inconsistent results. Interestingly, many US cases have involved use of music for political campaigns. Each case has been fact dependent.

While the various decisions may appear somewhat arbitrary, determining whether use of a musical work infringes another is a complex assessment. It requires an analysis of the component parts of each work, including the musical structure, features, treatment, accentuation and orchestration. This commonly involves evidence from expert musicologists. Similarly, expert evidence was called by both parties to analyse "Eminem-esque" and "Lose Yourself".

The decision

The two week trial came to an end on 12 May 2017. Justice Helen Cull reserved her decision saying it may be a few months before the judgment is released. Over two months have passed, and the question of whether or not the National Party has infringed copyright in the musical work "Lose Yourself" could be answered any day now, or at least before New Zealanders vote in the upcoming September election.

Ultimately, the case may turn largely on its facts - who really had permission and who knew what. However, while we wait for the decision to be released, this case offers a timely reminder that any use of a third party musical work, or a part of it, may require consent from the owner of the copyright work. When negotiating with someone who is not the copyright owner, this means getting appropriate evidence to be satisfied the supplier has the right to grant the licence, together with contractual assurances from the supplier.