A company that owns some of rapper Eminem’s early work has won a copyright case against an unusual defendant: a New Zealand political party.
New Zealand’s National Party has been ordered to pay NZ$600,000, plus interest, for using music from Eminem’s song “Lose Yourself” in a 2014 election ad. That’s around US$412,000 that must be paid to the plaintiff in the case, Eight Mile Style, a music publisher that owns some of Eminem’s early catalog.
Eminem, whose real name is Marshall Mathers, spoke about the case yesterday through a representative. In a statement to Variety, Eminem’s rep said that the rapper did not initiate the lawsuit and was not consulted about it. Any money Eminem receives will be donated to hurricane relief efforts, and he urged Eight Mile Style to do the same.
The statement from the rapper just now distancing himself from the case is surprising, since there have been news reports about this trial throughout the year in both the US and New Zealand press that clearly refer to Mathers as the plaintiff, as well as a segment on John Oliver’s HBO show.
The National Party’s 30-second advertisement shows a team of rowers, while a voiceover explains that New Zealand’s economy at the time was growing faster than 28 other OECD nations. Viewers were urged to “stay on course to prosperity” with the National Party, as opposed to going in “who knows what direction”—with the second option visualized by a chaotic boat, with rowers paddling in different directions.
Music in the ad is a “sound-alike” track called “Eminem Esque,” created by a man named Michael Cohen, who owned a copyright in that work and licensed it to a California music library. Cohen didn’t testify at the trial. The advertising studio that created the National Party’s ad was looking for something similar to Eminem’s song.
“The attraction was the steady, syncopated beat and rhythm to ‘Lose Yourself,’ giving a sense of momentum to accompany the rowing strokes in the advertisement,” wrote New Zealand High Court Judge Helen Cull.
A campaign manager asked the studio “for full details of the musical of the musical track,” concerned about the association with Eminem and possible copyright issues. The studio, Stan 3, said that a license was paid for Eminem Esque through the relevant Australian musical licensing groups.
After hearing testimony from two competing musicologists, Cull found that Eminem Esque was close enough to Lose Yourself that it qualified as a copy.
Eminem didn’t testify at the trial. However, his collaborator Jeff Bass, who was involved in the musical composition of “Lose Yourself,” did testify. Bass described how he composed original guitar riffs for the song, which “developed incrementally.”
The New Zealand High Court ruling includes links to the MP3 files of the relevant. Here’s “Lose Yourself” with Eminem’s lyrics, “Lose Yourself” without lyrics, and the “Eminem Esque” sound-alike track. There are also two comparative tracks produced by the plaintiffs in the case: a “sequential” comparison and then an overlay track.
The ad was shown to the National Party conference in June 2014, and then played on New Zealand radio and television stations for a ten-day period in August 2014. Between August 26 and 27, lawyers from Eight Mile Style, Eminem’s company, wrote to the National Party. The party pulled the ad and replaced it with alternative music.
In a 132-page ruling (PDF) issued early Wednesday, High Court Judge Cull found that copyright infringement had occurred, and she based damages on a license fee that would have been negotiated between a willing licensor and licensee.
Cull came up with the NZ$600,000 figure and directed the National Party to also pay interest from the date of its first infringement, at the June 2014 conference, to present.
The National Party told the New Zealand Herald that it’s disappointed with the verdict and will pursue legal action against the supplier and licensor of the music. “We think it’s a very strong judgment, and a cautionary tale for people who make or use sound-alikes around the world,” Adam Simpson, Eight Mile Style’s Sydney-based lawyer, told NBC.