A copy is a copy if it sounds like a copy

The New Zealand High Court recently found that the New Zealand National Party infringed copyright in the Eminem song ‘Lose Yourself’ as part of its 2014 election campaign.

The National Party released a television advertisement which included a song called ‘Eminem Esque.’ Eminem Esque was written by Michael Cohen and consists of a musical track with no lyrics. Mr Cohen licensed the song to a music production company in the USA, who subsequently licensed the song to Beatbox Music. The National Party purchased a licence to use the track from the music library of Beatbox Music, believing it was fine to use for the advertisement.

Eight Mile Style LLC (who own half the rights to ‘Lose Yourself’) commenced action against the National Party after the advertisement came to their attention. Eight Mile Style alleged that ‘Eminem Esque’ is a substantially similar version or adaptation of ‘Lose Yourself’ and the National Party engaged in copyright infringement by communicating a reproduction of the work to the public.

The National Party argued that the ‘Lose Yourself’ music track is comprised of elements common enough to pop songs to mean the track is not original and therefore does not attract copyright protection. In turn, it was not possible for ‘Eminem Esque’ to breach non-existent copyright.

The High Court accepted Eight Mile Style’s argument that when the elements of the music track are combined, it becomes distinct and original. The Court commented that the originality of a piece of work must be assessed as whole, and not in dissected parts.

The Court found that a substantial part of ‘Lose Yourself’ was copied, noting that there were minimal differences and striking similarities between the songs. The Court also noted the name ‘Eminem Esque’ indicated the song was clearly attempting to emulate Eminem, creating a causal connection between the two works. The Court summarised that ‘a copy is a copy if it sounds like a copy’ and awarded $600,000 (NZD) in damages.

This decision illustrates the importance of considering a work in its entirety when assessing copyright. Whilst individual elements may not be distinctive, when these elements are combined the work may be original and therefore attract copyright protection. It is also a lesson that you cannot always assume if you purchase a work you are fine to use it. Care should be taken to determine any permission required, and if it sounds like a copy, it probably is.

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