Unfortunately, the facts sometimes get in the way of a good story. Despite headlines such as “Eminem sues the New Zealand Government” going viral over the past few days, we regret to advise that the reality is not quite so tasty. Neither Eminem, nor as we understand things, his current representatives, have initiated any such action. Rather, the publishers of Eminem’s early song catalogue have sued New Zealand’s ruling National (liberal) party for copyright infringement, allegedly relating to the unauthorised use of the hit song “Lose Yourself” as backing music in a recent party political broadcast.

Introduction

It's been a rough old week for the New Zealand's Prime Minister, John Key. New Zealanders go to the polls on 20 September 2014 – and in the lead-up to the general election, the Prime Minister has found himself embroiled in two very well-publicised distractions. Firstly, his political adversary Kim Dotcom’s “moment of truth”; and now, the National party, of which he is the leader, is being sued by the publishers of US rapper Eminem’s early music catalogue for alleged copyright infringement.

At issue is the alleged use of Eminem’s hit song “Lose Yourself” as backing music in a recent party political broadcast, which aired regularly on New Zealand television throughout the month of August.  Proceedings have been filed in the Wellington registry of New Zealand’s High Court, where Eminem’s former publishers have sought damages from the National party for what they allege to be the unauthorised use of the song. 

Allegations, ironies and quotable quotes

The claimants are understood to allege:

“[U]nauthorised use has been made of Eminem’s Grammy and Academy Award-winning song Lose Yourself in election campaign advertising run by the National party in the lead-up to the 2014 New Zealand general election”.

Joel Martin, a spokesman for Detroit-based Eight Mile Style, LLC and Martin Affiliated, LLC (the holders of the copyright to Eminem’s early music catalogue) has been widely quoted as saying:

“It is both disappointing and sadly ironic that the political party responsible for championing the rights of music publishers in New Zealand by the introduction of the three strikes copyright reforms should itself have so little regard for copyright”. 

In response, the National party released a statement claiming that it would vigorously defend the allegations. National claims that the backing music at issue was duly licensed from Beatbox – an Australian-based music supplier – via APRA/AMCOS, the licensing bodies authorised by the Australasian music industry to grant licences for such uses, and that appropriate assurances were obtained that the music was original and did not infringe any copyright:

“The National Party completely rejects the allegation that the library music used in its early campaign advertisements is a copyright infringement of any artist’s work”.

Notwithstanding, it is understood that National had previously undertaken not to use the at-issue music any more. “However, this has not satisfied the complainant,” the party added.

It is not immediately clear what has transpired here from a copyright point of view. While some reports seem to suggest that the National party used the actual Eminem song, the National party’s response appears to indicate that the allegation may be that the Beatbox music is distinct from – albeit arguably substantially similar to, the Eminem song. If that is the case, the copyright question will come down to an analysis of the similarities between the two pieces of music and whether copying has taken place. It is noteworthy that the same music has apparently been licensed by other parties from the same supplier at least three times previously without issue or complaint – for example, it was used inAustralia’s Got Talent (Australia, 2011), Unsung Heroes (TVNZ, 2012) and A Current Affair (Australia, 2013).

Coincidence, unfortunate timing, or otherwise?

The circumstances of this case provide matter ripe for the conspiracy theorists.  It is somewhat rare for a copyright matter filed in the High Court to be accompanied by a media release, as happened here.

On the one hand, there is the incredibly inconvenient timing in view of Saturday’s general election, the apparent irony that a political party that has championed copyright protection should themselves be sued for copyright infringement – and the fact that the parties bringing this matter are/were intimately linked with one of the most famous recording artists on the planet.  On the other hand it has been suggested that this whole issue may be somewhat politically-motivated – a “smokescreen” intended to divert the nation’s focus away from the issues raised during Kim Dotcom’s “moment of truth” (i.e., allegations of mass surveillance of New Zealanders by covert Government and international agencies) – this, rather than a copyright claim by Eminem’s former publishers is the sort of thing that is likely to sink a Government four days out from a general election.   

Summary

It will be interesting to see how this plays out over the coming months.  Copyright matters seldom make it all the way to Court – cost and complexity issues generally dictate out-of-court settlements, conducted discretely behind closed doors.  Despite the fact that this particular matter has been made public, it is unlikely to gain too much traction as an election issue – the Government is unlikely to fall on the basis of a copyright action, irrespective of who it has been brought by.  On the other hand, it’s not every day that an intellectual property matter makes front-page news – and without wishing to trivialise the legitimacy of the claimants’ case in any way, provides a moment of welcome, light-hearted relief.