October 28, 2017
Eminem’s publishing company – Eight Mile Style – has been awarded NZ$600,000 by a New Zealand judge in relation to a copyright infringement claim brought by it against the National Party in New Zealand.
In 2014, the National Party used a track which was highly similar to Eminem’s well known track – Lose Yourself – in an election campaign advert. The advert was aired over 100 times on television during the 2014 election campaign. It was argued by the National Party’s lawyers that the track used was a different track, which they had purchased a synchronisation licence for from a stock music library made by production company Beatbox. The “sound-alike” track was tellingly entitled “Eminem-esque”.
However, the court did not accept the arguments made on behalf of the National Party and on the 25 October 2017 ruled that the track was “sufficiently similar” to Eminem’s “highly original work”. As such, the court ruled that the National Front’s use of “Eminem-esque” did indeed infringe copyright laws.
Amongst other things, the judgement considered the guitar riff, drum patterns, chords and violin tones of both tracks, all of which were found to bear “close similarities”.
The judge in her judgement even went so far as to identify the “prophetic” nature of Eminem’s lyrics highlighting in particular the words “You better lose yourself in the music, the moment, You own it, you better never let it go…”.
Copyright is a property right that exists in original works. There are three separate copyrights in Lose Yourself, namely, the original sound recording, the lyrics and the music. This case concerned the copyright in the music only.
As an owner of a copyright work there are certain acts that only the owner or its authorised licensees are able to do whilst the copyright work is still in copyright protection. For musical works copyright protection lasts for 70 years after the death of the author of the copyright work. Restricted acts include copying the copyright work, issuing copies of the work to the public, renting or lending the work to the public, communicating the work to the public and making an adaptation of the work or doing any of these acts in relation to an adaptation.
Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises someone else to do any of the acts restricted by the copyright. This relates to the whole or any substantial part of a copyright work and whether done directly or indirectly. When considering whether a substantial part has been copied a qualitative rather than quantitative approach is adopted. Additionally, there must be an objective similarity between the works where the whole or substantial part of the original work looks objectively similar to the copy.
The level of fame Eminem enjoys has meant that this decision has made headlines worldwide. It is the latest in a spate of decisions over the last few years where famous tracks have been “borrowed” from and follows other high profile legal action such as that taken by the family of Marvin Gaye against Pharrell Williams and Robin Thicke in relation to their track “Blurred Lines” where they were awarded to pay $7.4 million in damages to the Gaye family. Ed Sheeran also reached a deal with the song writers of the song “Amazing” in relation to a $20 million claim they were bringing for copyright infringement in relation to his track “Photograph”.
The level of damages being sought/awarded in these cases suggests that it is unlikely we will stop seeing legal action popping up in relation to our favourite tracks anytime soon. In a market where streaming (both legal and illegal) is prevalent and as a result artists are receiving lower amounts for music sales this may be seen as an attractive additional revenue stream.
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