In a judgment featuring a decidedly above-average number of rap lyrics, Eight Mile Style LLC v New Zealand National Party [2017] NZHC 2603, Justice Cull of the New Zealand High Court has found that the New Zealand National Party infringed copyright when it used a "sound-alike" song to Eminem's famous Lose Yourself in a political campaign advertisement.

Lose yourself in the background facts

Prior to the 2014 New Zealand election, the National Party commissioned a political advertisement which was pitched by the advertising agency to incorporate an extract of Eminem's song Lose Yourself. However, instead of obtaining a licence to Lose Yourself, the National Party opted to use a track called Eminem Esque which, as its name suggests, was designed to sound similar to Lose Yourself.

The similarity between Lose Yourself and Eminem Esque is best appreciated by hearing the two tracks. To this end, the High Court judgment (linked above) includes links to the original recording of Lose Yourself (at paragraph [10]), a music-only version (at paragraph [11]), the recording of Eminem Esque (at paragraph [13]), an aural overlay of the two songs used in the trial (at paragraph [15]), and the National Party advertisement (at paragraph [16]).

Eight Mile Style (EMS), the exclusive licensee and co-owner of copyright in Lose Yourself, sued the National Party for copyright infringement, while National Party politician Steven Joyce defended the use of the song as "pretty legal". The case received international attention when footage of Lose Yourself being played in court during the trial went viral.

Lose Yourself was protected by copyright

As a preliminary matter Justice Cull found that the song reflected sufficient skill and labour to be protected by copyright, and that EMS, as the owner of half of the song and the exclusive licensee of the remaining half, was entitled to enforce that copyright.

The fact that the authors of Lose Yourself are residents of the US was of no consequence, because the US and New Zealand are both parties to the Universal Copyright Convention, which, so far as copyright is concerned, affords US residents the same rights as New Zealand residents.

Eminem Esque was a copy of Lose Yourself

Justice Cull first considered the originality of Lose Yourself in greater depth in order to determine whether there were any parts of the song that may be copied without infringing copyright. After a detailed analysis of the song and the process of its creation, her Honour concluded that Lose Yourself was "a highly original work", which was perhaps unsurprising given that it had received the 2003 Academy Award for Best Original Song.

Her Honour also found that Eminem Esque was "strikingly similar" to Lose Yourself, observing that "when the two tracks are deconstructed into their musical elements, including tempo, duple metre, harmonic structure, piano parts, drum patterns and background chords, it is clear that Eminem Esque incorporates the essential features of Lose Yourself".

The National Party had infringed the copyright in Lose Yourself

The advertisements in question featured 30 seconds of Eminem Esque, and an additional National Party opening broadcast advertisement used eight edits of the song over 15 minutes. Justice Cull found that this was a sufficient use of the song so as to be impermissible copying, due partly to the fact that a distinguishing feature of Lose Yourself, its six note piano figure, was reproduced in all forms of the advertisement.

Additionally, the fact that the National Party had consciously sought out a song which sounded similar to Lose Yourself and settled on Eminem Esque, demonstrated that they themselves thought the songs sounded similar, and the name of the song indicated that its author had deliberately relied upon Eminem's music in its creation.

The National Party, in communicating the work to the public through its advertisements, had therefore infringed EMS' copyright.

Damages were awarded based on the loss of a licensing fee

Damages were calculated based on the notional license fee that would have been negotiated between the parties if they had been willing to do so. Justice Cull awarded EMS NZ$600,000 in damages, having regard to the facts that:

  • Eminem's music and Lose Yourself in particular had a high value in New Zealand;
  • the song was used in a political campaign which did not align with the artists' personal values and posed a commercial risk;
  • the artists rarely licensed Lose Yourself for use in advertising;
  • Eminem Esque had copied Lose Yourself almost entirely;
  • the advertisement was only played for 11 days;
  • the New Zealand market is comparatively small;
  • the National Party were willing to acquire the sound of Lose Yourself; and
  • EMS placed great value in Lose Yourself and exercised control where it was licensed.

EMS was not entitled to additional damages because the National Party had not behaved "outrageously", as it had sought professional and industry advice regarding using Eminem Esque.

This award of damages was against the National Party; however, the ultimate liability for damages will be determined by a subsequent hearing concerning third parties including the advertising agency and author of Eminem Esque.

Relevance of (and to) Australian law

The New Zealand High Court judgment drew to some extent on Australian law, particularly in relation to the award of damages, and the lawyers representing EMS have claimed that the decision is "a warning to 'sound alike' music producers and their clients everywhere … it sets a major precedent in New Zealand and will be influential in Australia".

Similar issues arose in Australia in EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 47, where it was held that Men at Work's famous song Down Under infringed the copyright in Kookaburra Sits on the Old Gum Tree, a classic Australian nursery rhyme. See our article here.

It is likely that the Lose Yourself case would have played out in a similar fashion under Australian law, which also protects works by authors of countries which are a party to international copyright conventions, and similarly requires a work to be original and for infringement to involve reproduction of a "substantial part" of the work (which is also judged by reference to quality, not quantity).

The Productivity Commission's report on intellectual property arrangements addressed the practice of music "sampling", where parts from one song are combined with other instrumentation to form new music, and noted that "Australian courts typically take a firm view against unauthorised music sampling". While in this case no direct sample was used, the resemblance between the two songs may have resulted in a similarly firm judgment in Australia.