The High Court has awarded Eight Mile Style, LLC $600,000 in damages for the copyright infringement of the Eminem song Lose Yourself by the New Zealand National Party. This has been one of the more high-profile recent copyright cases in New Zealand and is likely have a significant impact on relevant parts of the creative industry.
As part of the National Party's 2014 election campaign, a TV advertisement was released which included synchronised music sounding familiar to some viewers. This came to the attention of Eight Mile Style, who hold the rights to Lose Yourself, an Eminem track made particularly famous in the semi-biographical movie Eight Mile.
The National Party ad did not include Lose Yourself – instead, it used a piece of ‘production music’ called Eminem Esque. Production music is a term used to describe music recorded to be licensed out for use in TV, radio, and other media – usually without associated royalties and for much lower prices than popular recording artists can command. In this case, Eminem Esque was a particular flavour of production music known as a ‘sound-alike’. As the name suggests, such tracks are intended to sound similar to the style of a particular song, artist or genre.
As you may have guessed, Eight Mile Style felt that Eminem Esque was so similar to Lose Yourself that it infringed their exclusive rights and demanded that National stop their use. National switched out the music several days later, and Eight Mile Style sought judgment against National and several other parties involved in the use of Eminem Esque.
Originality and infringement
At the High Court, the main issues were, firstly, whether Lose Yourself was copied and secondly, whether that copying amounted to infringement. Both Eight Mile Style and the National Party relied on evidence from expert musicologists, as well as repeated playing of both tracks, to support their arguments. In a relatively novel move, the High Court judgment helpfully includes hyperlinks to the key pieces of media in the trial, including excerpts of each track, a comparator track of both songs played simultaneously, and the TV ad as it was first released.
A number of arguments were raised by National against the claim of infringement, including that Lose Yourself was composed of elements (other than the melody and lyrics) common enough to other pop songs that it was not itself particularly original – and so could not be infringed by use of a song copying those unoriginal elements.
This argument did not fare well, however, in light of a useful analogy by Eight Mile Style’s expert, which likened each element of the music to parts of a face used in an ‘identikit’, with the face as a whole only becoming recognisable and distinct when all the elements were viewed together. This was a view largely approved by the Judge, who noted that a legal assessment of originality has to be on the work as a whole and not made by dissecting the work into individual notes or other constituent pieces.
As an aside, while it may not have been the deciding piece of evidence against the argument that Lose Yourself was not original, it is particularly interesting to note that the song did manage to win an Academy Award as ‘Best Original Song’ in 2003.
Ultimately, as the Judge paraphrased, ‘a copy is a copy if it sounds like a copy’. In this case, the Court concluded that the differences between the two songs were minimal, the similarities were striking, and a substantial part of Lose Yourself was copied – both in Eminem Esque as a full track and in the 30 seconds used in the National Party ad. There was no question that there was a connection between the works, particularly given the similarities, the creation of the work as an intended sound-alike, and the choice of name for Eminem Esque.
National was found to infringe on the copyright in Lose Yourself by communicating a reproduction of the work to the public, authorising the copying of the work by having Eminem Esque synchronised with their advertisements, and authorising the showing of the advertisement.
The damages of $600,000 were arrived at on the basis of a reasonable licence fee, as if National had properly obtained a license to use Lose Yourself, a famous and seldom-licensed song. Part of the discussion here highlights that though New Zealand is a relatively small market, widespread access to the internet and the likelihood that the ad would be used or reproduced online reduces the degree to which this might have lowered the value of such a licence in the past.
This judgment is likely to have a number of producers and licensors of production music – and especially of sound-alikes – concerned about whether their work could be found to infringe on their ‘inspirations’, and the significant damages awards that could follow. During the case it was noted that sound-alikes have seldom, if ever, been found to infringe on prior works in the past (which may be because few such claims are made – or that most are settled before reaching the courts), so this could be a significant swing in the way the industry functions.
Beyond New Zealand, this decision could possibly affect the production music industry in the UK, Australia and other commonwealth countries, as the judgment and the arguments it deals with are likely to also carry some weight in these jurisdictions.
A second hearing regarding the potential liability of the third parties has yet to be held.
News reports indicate that Eminem plans to donate the damages awarded to disaster relief in the wake of Hurricane Harvey.