Delivering another blow to the New Zealand National Party who lost control of Government following the 2017 election, a recent High Court judgment has found the party liable for damages of $600,000 NZD (plus interest) to Eight Mile Style for copyright infringement of Eminem's "Lose Yourself".
The National Party, through its advertising and media consultants obtained a 'sound-alike' production track titled "Eminem-Esque" from a production music library. Sound-alike music is produced for the very purpose of resembling another musical work. The track featured in television and internet advertisements used by the Party in their 2014 election campaign. The track sounded very similar to Eminem's hit song Lose Yourself. Copyright owner and exclusive licensee of Lose Yourself, Eight Mile Style, brought an action in copyright infringement against the National Party in New Zealand. The Party contested the originality of Lose Yourself, claiming that the parts it copied were not original enough to attract copyright protection.
Despite its payment of a synchronisation licence fee and assurances from both the advertising/media consultants and Eminem-Esque's licensors that Eminem-Esque did not infringe copyright in the original work, the National Party was held liable for copyright infringement.
The High Court found that Lose Yourself met the low threshold for originality required for subsistence of copyright in a work, the musical elements having a distinctive sound. Distinctiveness was not limited to the melody with Justice Cull referring to the "distinctive guitar strum" and "insistent tense hypnotic rhythm". Therefore altering the melody of a musical work did not evade copyright infringement as the overall sound of both works remained similar. Lose Yourself was also held to be a highly original musical work, its receipt of an Academy Award for Best Original Song deemed no coincidence.
The High Court emphasised that an analysis of copyright infringement should take a holistic approach rather than comparing the alleged infringing work with the original work section-by-section. The plaintiffs succeeded in proving all three requirements for establishing copyright infringement:
- A substantial part of Lose Yourself had been copied both in the full Eminem-Esque track and the section synchronised to the advertisements; there were minimal discernible differences between the two pieces when assessed in its totality.
- There was objective similarity between the two works. The test was one of hearing and ear recognition, broadly "a copy is a copy if it sounds like a copy". After listening to both tracks, considering expert opinions and finding evidence that others recognised Eminem-Esque as sounding like Lose Yourself, Justice Cull found striking similarity in their sound.
- There was a causal connection between Lose Yourself and the making of Eminem-Esque. This was established by inference from all the evidence including the extent of similarity between the works and the fact Eminem-Esque was created to be sound-alike to Lose Yourself.
The court determined that the National Party had both communicated an infringing copy of Lose Yourself to the public and authorised infringement, completing a finding of copyright infringement.
The court awarded damages on the basis of the "user principle"; the hypothetical licence fee a willing licensee would have paid a willing licensor. Because the National Party had sought to attain the sound of Lose Yourself, this warranted a higher starting point for the fee. The assessment of damages took into account the high value and rarity of licencing of Lose Yourself as well as the purpose of use; a political campaign wholly unrelated to Eminem or Eight Mile Style.
The case highlights the need for caution in music licensing negotiations. A production music licence merely provides consent for certain uses of the particular track. There is always a possibility the licensed track infringes upon another copyright work. Therefore it is important that a music licensing contract includes an indemnification clause and warrants that the:
- licensor has the right to license the track commercially
- intended use of the track is permitted
- track does not infringe copyright in other works
Due to the inherent risk associated with a sound-alike track, it is best to seek legal advice in conjunction with an analysis by a musical expert.
The robustness of assurances obtained by the National Party will be examined in a second hearing determining the extent of third party liability. If left to bear the cost, the case will be most disquieting for those in the film, media and advertising industries where licensing of sound-alike tracks is commonplace.
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