Eminem wins copyright case against New Zealand’s National Party – Intellectual Property Update

In October 2017, the High Court of New Zealand awarded NZ$600,000.00 to Eminem for the National Party’s infringement of the rapper’s copyright in his 2002 hit ‘Lose Yourself.’ In their 2014 election campaign, the National Party created an advertisement used a backing track which was clearly a copy-cat version of the distinctive Eminem song. The party used the song 186 times during the campaign before withdrawing the advertisement. This prominent intellectual property case is likely to have implications in many jurisdictions.

What is copyright infringement?

Copyright is a type of intellectual property that protects the original way that ideas are expressed. For example, copyright can exist in a piece of writing, source code, music or visual art. The copyright owner has particular exclusive rights, such as the right reproduce the work. Copyright protection automatically exists from when the work is created, and does not require registration.

A person infringes copyright when they use material in a manner that the copyright holder is only allowed to do, without the owner’s permission or a legal defence. A person does not need to use the entirety of the work, and can infringe copyright by only using a ‘substantial part’ of the work. Courts have generally interpreted ‘substantial part’ as an important or recognisable part of the whole work. In Eminem’s case, the backing track to ‘Lose Yourself’ is certainly distinctive. Defences to copyright infringement include ‘fair dealing’ for a particular purpose, such as research, criticism, parody, satire, or reporting news.

The Eminem case

The National Party purchased the track, titled ‘Eminem Esque’ from a company called Beatbox, who had obtained the licence from a music library called Labrador. The National Party believed that they had gone through the appropriate channels and were able to legally use the track in their campaign.

The High Court found that the music used in the advertisement “substantially reproduces the essence of ‘Lose Yourself.’” In her final judgment, Justice Cull found that:

The close similarities and the indiscernible differences in drum beat, the ‘melodic line’ and the piano figures, make Eminem Esque strikingly similar to Lose Yourself. … The ear tells you Eminem Esque sounds the same and the listener is left thinking one has come from the other.

The compensation awarded to Eminem was determined by an assessment of the hypothetical licence fee that would have been payable if the National Party were to use the song without infringement. In making this assessment, the court considered the following factors:

  • Eight Mile Style retained the exclusive control of licensing of the track, and rarely grant permission for use of the song in advertising;
  • the purpose of the National Party’s use of the song was political use in an unassociated country – a use which would not have been endorsed by Eminem or Eight Mile Style; and
  • the short time the advertisement was broadcast (11 days, shown 186times).

What can we take from this case?

If material is lawfully purchased, this does not mean that any use of this material will not infringe copyright. When using material for advertising and marketing purpose, it is important that you investigate the true owner of the copyright, and obtain the necessary permissions. It is also important to assess whether you are using a recognisable or ‘substantial part’ of the work, and any defences that could apply.

If someone infringes your copyright, you should act immediately to protect your rights as the copyright holder. You should contact an experienced lawyer to draft a letter of demand to the other party outlining your copyright claim. If the infringer does not reply within the specified time period, you can commence legal proceedings to recover compensation, or seek an injunction to prevent them from using the copyright material.

Want to know more about copyright? Looking for an experienced solicitor in Newcastle, Sydney or the Hunter to advise you on intellectual property law? Call us on (02) 4929 7002, email us or complete an enquiry form.

Image: ‘Eminem performs during The Concert for Valor in Washington, D.C. Nov. 11, 2014. DoD News’, by EJ Hersom, available at Flickr, under a Creative Commons Attribution 2.0 licence.

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