The trial has begun for the long-running battle between the owners of the copyright in the Eminem song ‘Lose Yourself’, and various parties (including the National Party) who are alleged to have infringed that copyright.
In 2014 the National Party ran an election campaign advertisement featuring an instrumental track with a striking resemblance to ‘Lose Yourself’. The ‘soundalike’ track was sourced by the National Party’s advertisers from the Australian music supplier BeatBox, who marketed the track as ‘Eminem-esque’. The copyright owners (who don’t include Eminem himself) are alleging that the track goes beyond simply evoking the Eminem song, and is in fact an infringing copy. By using the track in its advertisement, the copyright owners say, the National Party is liable for copyright infringement.
Musical copyright cases are notoriously difficult, and deciding whether one song reproduces part of the other requires detailed examination of the structure, melody, tempo, and harmony of the two works. To the layperson, decisions in these cases can seem somewhat arbitrary: why was Led Zeppelin found not to infringe copyright in the instrumental ‘Taurus’ with the opening riff to ‘Stairway to Heaven’, but Men at Work’s ‘Down Under’ was found to reproduce two bars of the classic Australian children’s song ‘Kookaburra sits in the old gum tree’? However, the similarity between two musical works may be buried at a level not immediately apparent to the casual listener and expert evidence from musicologists is often needed to uncover and explain this for the court.
This is an important case for New Zealand, as we have very little indigenous case law on musical copyright infringement. The trial is expected to run for at least six days, and intellectual property lawyers around the country await the decision with interest.