In 2014, American rapper Eminem filed proceedings against the National Party of New Zealand for using a variation of his song, ‘Lose Yourself’, without consent. The song was used in the National Party’s successful election campaign of the same year.
To establish a copyright infringement, it is necessary for the court to firstly consider whether the work is original. Justice Cull found Eminem’s song to reflect sufficient skill and labour and be ‘highly original work’ with its melodic line and combination of other instruments such as the guitar riff, hypnotic rhythm and piano figure. This conclusion is not surprising given that ‘Lose Yourself’ received the 2003 Academy Award for Best Original Song.
Secondly, the court must establish that the three elements of copying have been satisfied, which are:
- Has the original work been substantially copied?
- Does the copied work sound objectively similar to the original work?
- Is there a causal connection between the copied work and the original work?
It is important to note that the first element does not require the work to be copied entirely, even copying a small amount can amount to infringement. In this particular instance, Justice Cull determined that the National Party’s song had substantially copied ‘Lose Yourself’ as there were close similarities between the two songs and indistinct differences in the drum beat, the melodic line and the piano parts.
The second element of object similarity requires that the whole or a substantial part of the original work looks objectively similar to the copy. Using a hearing and ear recognition test, the court found that there was a sufficient degree of resemblance between the National Party’s song and ‘Lose Yourself’.
Lastly, the element of causation requires proof that there is an unlawful use of original work either directly or indirectly. Usually, the closer the similarity between the two works, the stronger the inference is likely to be that one was copied from the other. The court found that it was clearly evident that ‘Lose Yourself’ was copied in the production of the National Party’s song as it was created as a sound alike track.
Overall, the National Party’s song constituted a breach of the Copyright Act 1994 (NZ) amounting to copyright infringement.
The High Court of New Zealand awarded Eminem approximately $600,000 NZD ($535,000 AUD).
In addition to the copying, damages were also awarded because:
- Eminem’s music had a high value in New Zealand;
- The National Party’s campaign did not align with the artists’ personal values which gave rise to a commercial risk; and
- The National Party’s song had almost entirely copied ‘Lose Yourself’.
In Australia copyright is governed by not to dissimilar legislation; the Copyright Act 1968 (Cth). In 2011, a similar issue arose in Australia where it was found that Men at Work’s song, Down Under, infringed the copyright in an Australian nursery rhyme (‘Kookaburra Sits on the Old Gum Tree’).
The rulings in both New Zealand and Australia serve as a warning to music producers and their clients by confirming the rights of artists and songwriters. It shows the dangers of using other people’s works without permission – doing so comes with a high level of risk.
By Christina Krantz and Jashan Singh
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