“You own it, you better never let it go”: New Zealand’s National Party found liable for copying Eminem’s 'Lose Yourself'
27 October 2017
The High Court of New Zealand has found that the National Party of New Zealand infringed copyright in Eminem’s award-winning and ‘highly original’ song Lose Yourself, by using the ‘sufficiently similar’ song Eminem Esque in one of their 2014 election advertisements.
Lose Yourself was first released in the USA in September 2002, and was composed by Marshall Mathers III (Eminem), Jeffrey Bass and Luis Resto. The plaintiffs in the case, Eight Mile Style LLC, are 50% owners of the song, and the track has only ever been licensed for promotional use three times.
Eminem Esque was written by Michael Cohen, who licensed his song to a music production company in the USA, who in turn licensed Beatbox Music to make the song available in New Zealand, Australia and Fiji.
In early 2014, the National Party developed an advertising campaign for New Zealand’s 2014 election. Although some National Party staff members noted that the track sounded like Eminem, it was ultimately decided that Eminem Esque was the best fit for the ad.
After obtaining the necessary licence for Eminem Esque from Beatbox Music, between 20 and 30 August 2014, the advertisement was played 186 times on New Zealand tv, and was played a further 8 times during a 15 minute tv broadcast on 23 August 2014. On 25 August 2014, Eight Mile Style’s lawyers complained about the unauthorised use of Lose Yourself, and from 30 August 2014, alternative music was used in the National Party’s advertisements.
Eminem Esque consists only a musical track, without lyrics, so the case was only concerned with infringement of copyright in the music of Lose Yourself, specifically its recurring beat. Although Mr Cohen wrote the song (and was named as a party to the case, but did not appear in court), Eight Mile Style named the National Party as the first defendant on the basis of their high-profile role in communicating and reproducing the music of Lose Yourself to the New Zealand public in a political campaign ad without permission.
The National Party argued that Eminem Esque did not infringe copyright in Lose Yourself, on the basis that the Lose Yourself music track is not original. They argued that the individual, component parts of Lose Yourself, such as the metre, the chord progressions and the beat, were “borrowed, common or unremarkable”, and therefore did not attract copyright protection, since they are not of themselves original.
Eight Mile Style argued that although, when taken separately, those elements may be unremarkable, when combined, those elements in combination make a work distinctive and original. They emphasised the fact that as well as topping music charts all around the world, Lose Yourself also won the 2003 Academy Award for Best Original Song, and two Grammy Awards in 2004.
Accordingly, the Court was asked to determine:
- How original Lose Yourself is;
- Whether Eminem Esque was ‘objectively similar’ to Lose Yourself;
- Whether Eminem Esque substantially copied Lose Yourself; and
- Whether Eminem Esque reproduced a ‘substantial part’ of Lose Yourself.
Justice Cull found that Lose Yourself “is a highly original musical work”, and that:
- Eminem Esque substantially copied Lose Yourself, since the differences between the two songs are minimal, have “close similarities and […] indiscernible differences”, and are “strikingly similar”;
- Eminem Esque is objectively similar to Lose Yourself because there are minimal discernible differences between the two tracks when listened to; and
- It was no coincidence that Eminem Esque sounded like Lose Yourself, particularly since the song was called Eminem Esque, and therefore there was a ‘causal connection’ between the original work and the infringing song.
As a result, the National Party was found liable for communicating or reproducing Lose Yourself to the public without a licence, and authorising the copying of Lose Yourself in the election advertisement. Since Mr Cohen did not appear in the case, no finding as to his liability for writing Eminem Esque was made.
The Court found that the ‘rare’ licensing of Lose Yourself entitled Eight Mile Style to damages of $600,000 NZD, which the Court considered the appropriate fee for licencing the song in New Zealand for the period for which the song was used in the advertisement. The Court declined to award additional damages for flagrancy of the breach, since the National Party only used Eminem Esque after making proper legal enquiries about copyright and any associations with Eminem.
Although a New Zealand case, it still helpfully demonstrates the ways that originality is assessed for the purposes of copyright law: as Eight Mile Style’s expert musicologist explained, and Justice Cull repeated, while the individual part of your face – such as large ears, or a crooked nose – are not distinctive enough to warrant copyright protection, when large ears, a crooked nose, yellow teeth and red hair are combined, it creates a face that is more distinctive than its individual parts.
Justice Cull also usefully examines and explains what a court considers when determining if there is “substantial similarity” between two musical works. They include the effect of the combination of sounds in a song “on the ear of the listener”, and consider the impression of the work as a whole, not simply singling out notes. In other words, “substantial part” is always a question of quality, not quantity.
Read the full decision here, or for more information about music and copyright, see our range of helpful information sheets for Songwriters & Composers and Musicians & Bands.