South Africa: Music, Politics And The Law

Last Updated: 14 August 2017
Article by Zama Buthelezi

In September 2014, Eight-Mile Style, the publisher of Eminem's "lose yourself" song filed legal proceedings against New Zealand's National party, claiming copyright infringement of Eminem's Grammy and Academy award-winning song "lose yourself".

The New Zealand National Party used the introduction of Eminem's "lose yourself" song (most of us will know that familiar urgent, pulsing beat) in its electoral campaign during 2014. The National party claimed that they purchased the track, called Eminem-Esque (hint hint), from a stock music library.

The matter was heard in the New Zealand High Court recently and judgment is yet to be handed down. Eight-Mile Style is suing for an undisclosed amount in damages for copyright infringement and has also requested an acknowledgement by the Court that the National party has infringed copyright.

It would be interesting to consider what the outcome would be if this dispute were brought before the South African courts. In terms of the Copyright Act No. 98 of 1978 ("the Act"), a "musical work" means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.

In terms of Section 6 of the Act, copyright in a musical work vests the exclusive right to do or to authorize, inter alia, of any of the following acts in the Republic: the reproduction of the work in any manner or form; the performance of the work in public and the making of an adaptation of the work.

In order to establish copyright infringement, Eight-Mile Style would have to prove that the National Party's backing track constitutes a reproduction or adaptation of a substantial part of the musical work complained of.

Although section 12 of the Act provides for certain exceptions to copyright infringement in literary and musical works, this matter does not seem to fall under any of the current exceptions provided by the section.

In the circumstances, it seems that the only real argument open to the National Party would be to show that the portion of the music used was not substantial, i.e. it was not an important part of the music – this is a qualitative and not quantitative assessment.

Without having had sight of the full arguments put forward by both parties and without intending to predict what a South African court's finding would be, I am inclined to say that although the familiar pulsing beat of "lose yourself" is only in the beginning of the song and it is a short beat in comparison to the song in its entirety, this is how listeners of the song actually identify "lose yourself". Without this beat, the song would almost be unrecognisable. As we all know, music is often identified in the beginning. This makes sense as, for instance, it is the introduction of a book, movie, song or any kind of entertainment, in fact, that will capture the audience.

It is also worth noting that the South African government recently published some proposed amendments to the existing copyright legislation, which is intended to overhaul the somewhat outdated current laws. In terms of the Copyright Amendment Bill of 2017, Section 12 of the current Act is amended by the inclusion of the following exception: that fair use in respect of a work or performance of a work, for the purposes of comment, illustration, parody, satire, caricature or pastiche does not infringe copyright in that work.

The Bill provides that the following factors must be taken into account when determining what is fair use or fair dealing (these terms are used interchangeably): the nature of the work in question; the amount and substantiality of the part of the work affected by the act in relation to the whole of the work; the purpose and character of the use, including whether such use serves a purpose different from that of the work affected and it is of a commercial nature or for non-profit research, library or educational purposes; and the substitution effect of the act upon the potential market for the work in question.

This exception mirrors the European Copyright Directive, although, the European Copyright Directive (like the Copyright Amendment Bill) provides no specific definition of the terms "parody", "caricature" and/or "pastiche", which leaves it to the courts to interpret the terms. The UK Intellectual Property Office (IPO) Guidelines, however, do set out explanatory notes for each term and in this regard the meaning of pastiche is provided as being "musical or other compositions made up of selections from various sources or one which imitates the style of another artist or period".

Although the IPO Guidelines do not have any formal legal application in South Africa, it is possible that, if the Copyright Amendment Bill is finally enacted in South Africa, regard would be had to the IPO Guidelines in interpreting the meaning of the word "pastiche".

If a similar situation were dealt with in South Africa (after the enactment of the Copyright Amendment Bill) it is arguable that the alleged infringing party may have scope to contend that the "pastiche exception" is applicable, however they would also have to show that such use amounted to fair use or fair dealing.

There have been several other cases internationally, that involve political parties making use of certain musical works, such as when Both Cyndi Lauper and Sam Moore of Sam & Dave asked the Democrats and the Obama campaign to stop using their songs. It seems that the union of music and political parties have a long history.

It would be interesting to know what would have happened in a South African context, had the song "umshini wami" been subject to copyright protection.

After all is said and done, my advice is simply this: obtain permission from the copyright owner.

It will be interesting to hear the outcome of the rapper's case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions