The National Party has lost the copyright case for using a “sound alike” version of the Eminem song Lose Yourself in a 2014 election campaign advert.
It should pay $600,000 plus more than two years interest, Wellington High Court judge, Justice Helen Cull, said in her decision issued on Wednesday.
The National Party had paid $4802 for the licence to use the “soundalike” music library track Eminem Esque, but the copyright holders for Lose Yourself said it was so close to the original that it breached copyright.
Detroit rapper Eminem was not a party to the case. Two United States companies who controlled the copyright sued the National Party and its manager/secretary Gregory Hamilton.
The judge found Lose Yourself was a “highly original” work, and Eminem Esque substantially copied it. The similarities between them overwhelmingly supported a finding of copying.
National Party president Peter Goodfellow said the result was disappointing.
“The Party is now considering the implications of the judgment and the next steps.”
It already has a claim against the suppliers and licensors of the track, Goodfellow said.
The two companies, Eight Mile Style and Martin Affiliated, part-owned the copyright of Lose Yourself and have exclusive rights to bring an action for copyright infringement.
Eminem was one of three creators of Lose Yourself. The other two were Jeff Bass and Luis Resto. Some details of the ownership were kept confidential.
During the nearly two-week court hearing in April and May, secrecy surrounded details of comparable fee agreements to use music, the fees paid, and settlements reached for infringing copyright. The public version of the judge’s decision was edited of those details.
Los Angeles composer Michael Cohen, who was responsible for Eminem Esque, was made a party to the case, but took no part in it.
The US companies said the essence and substance of Lose Yourself was reproduced in Eminem Esque.
The companies said the party should pay substantial compensation, with a starting figure of perhaps of US$1 million (about NZ$1.4m), plus extra for factors including flagrant disregard of copyright.
Lose Yourself was released in 2002 in conjunction with the movie 8 Mile, and won both Oscar and Grammy awards.
The court was told that rarely had Lose Yourself been allowed to be used for other purposes such as advertising, and the copyright holder would not have licensed its use by the National Party for any amount of money.
But during the court hearing, the National Party defence was that a licence fee was paid to use Eminem Esque.
When someone noticed the similarity to Lose Yourself the company in charge of preparing the advert took advice from others in the advertising and music industry that the music was safe to use. But it did not get legal advice.
The ads were broadcast more than 100 times before they were replaced because of the copyright complaint.
If the National Party was found to have infringed copyright it was expected to say it relied on the assurances of others, and having paid the $4802 licensing fee to use Eminem Esque.
The Eminem Esque music came from a production library of compositions and sound effects intended for commercial use in adverts, films and television programmes.
Listed below the National Party on court documents were other parties who it could try to have shoulder the blame if copyright was infringed.
The list started with Stan 3, the company formed to coordinate work on the National Party’s campaign.
Below that was the sound studio that found Eminem Esque.
Then there were the two organisations that licensed use of musical compositions including Eminem Esque, and collected a fee that was passed to the publishers and creators.
During the trial, the court heard from a witness for one of the organisations that licensed the use of Eminem Esque. They said the licence fee was not a shield against claims that the music broke copyright of another work.
However, if the case continued a likely issue was the music industry understanding of the protection the fee offered.
Further down the list was the Australasian distributor of a library of work from sources including Los Angeles company, Labrador Entertainment.
Labrador’s library had included “sound-alikes” – works that were created to sound similar to well known compositions without infringing the original’s copyright.
Labrador’s president, who gave evidence in the case, said that, out of caution, he had sound-alikes removed from his library in 2012 and directed that sound-alikes sourced from Labrador should also be removed from the libraries of companies he supplied.
A dispute has already been signalled between Labrador and an Australasian distributor, Beatbox Music, about that alleged direction. Beatbox says if it was held liable for any loss it should be able to claim it back from Labrador.
Last on the list was Cohen, a composer of music for television and films. The court was told several times that a composer like Cohen would wait many months to be paid after his work had been licensed for use.
Labrador says Cohen warranted all the compositions he supplied to Labrador were his own work and did not infringe another’s copyright.
Cohen was contacted to take part in the court case but refused, the judge was told.
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