The New Zealand High Court rendered a decision in favor of Eminem’s publishing company, Eight Mile Style, LLC, on October 25, 2017, holding that New Zealand’s National Party committed copyright infringement when they used a tune similar to Eminem’s “Lose Yourself” in a campaign advertisement. Finding substantial similarities between the music in the ad and the original song, the High Court awarded $415,000 in damages to Eight Mile Style.
The advertisement, which aired during the New Zealand electoral campaign of 2014, featured a tune purchased through a “sound-alike” music library (run by Beatbox Music) that sounded nearly identical to the beat of Eminem’s “Lose Yourself.” In fact, the purchased track was listed in the Beatbox Music’s library as “Eminem Esque.”
Under New Zealand copyright law, “proof of copying” and proof of a “restricted act” are required to prevail on an infringement claim. Proof of copying was forcefully argued in a 132-page opinion penned by Judge Hull of the New Zealand High Court, where the Court found the differences between “Lose Yourself” and “Eminem Esque” to be “minimal,” noting “indiscernible differences in [the] drum beat, the ‘melodic’ line and the piano figures.” The Court also found that the stock track was produced with the purpose of imitating “Lose Yourself,” stating that “the undeniable inference to be drawn from the evidence is that the composer of “Eminem Esque” had “Lose Yourself” in front of him.” As to a “restricted act,” the court found that the National Party authorized copying of “Lose Yourself” by synchronizing “Eminem Esque” with their advertisement and communicating this substantial copy to the public without license.
In arriving at the damages figure awarded, the Court found a multitude of factors weighing in Eight Mile Style’s favor, concluding that the chances of a major artist like Eminem agreeing to have his work used in a foreign, local campaign were slim, and that Eminem had recently held a highly successful tour in New Zealand. With important factors weighing in favor of Eight Mile Style, the Court accepted the projected minimum baseline fee that would have been charged, provided by an expert music consultant called by Eight Mile Style.
According to Adam Simpson, a copyright attorney acting on behalf of Eight Mile Style, this decision should serve as a “warning to ‘sound-alike’ music producers and their clients everywhere.” Included on the receiving-end of that warning is California-based Labrador Entertainment Inc., who originally contracted with Beatbox to make “Eminem Esque” available in Australia. Labrador fought the motion that ultimately dragged them into the New Zealand suit, citing a jurisdiction clause in their contract with Beatbox that set California as the sole venue for any legal claims Beatbox might have against Labrador. Noel Webb, president of Labrador, gave evidence in the case, showing that “sound-alike” music was common in the industry and stating that, to his knowledge, no successful infringement action had been brought in regards to “sound-alike” music. It is not entirely clear whether Labrador would fare better in California than in New Zealand; in fact, the High Court in New Zealand noted that Labrador made no claim that California and New Zealand law differ substantially in regards to how they would deal with “sound-alikes.” Labrador’s chance of successfully defending in the U.S. aside, use of “sound-alikes” remains widespread practice in the American advertising industry. Time will tell whether U.S. based “sound-alike” producers will be deterred by the possibility of their works finding their way to foreign courts.
Belinda Willis, Legal Challenges Grow as More Advertisers Use Sound-Alike Songs, The Advertiser (January 2, 2014), http://www.adelaidenow.com.au/legal-challenges-grow-as-more-advertisements-use-soundalike-songs/news-story/a19f52d2f072aab58e0f667ef7c19a25
Eight Mile Style, LLC v. New Zealand National Party [2017] NZHC 2603.
James Regan, U.S. Rapper Eminem Wins Copyright Case Against NZ Political Ads, Reuters (October 25, 2017), https://www.reuters.com/article/us-eminem-newzealand-suit/u-s-rapper-eminem-wins-copyright-case-against-nz-political-ads-idUSKBN1CU0SP
Joseph Mandaur, Eminem Wins Copyright Lawsuit Against New Zealand Political Party, Mandour & Associates (October 31, 2017), http://www.mandourlaw.com/blog/eminem-wins-copyright-lawsuit-newzealand-political-party/
Shawn Setaro, Soundalike Songs Are a Two-Faced Business (March 15, 2015), https://medium.com/cuepoint/soundalike-songs-are-a-two-faced-business-f44ca9678bef
Soundalike’ Music Never a Problem for LA Music Library, Court Told, Stuff (May 4, 2017), http://www.stuff.co.nz/entertainment/92198198/Soundalike-music-never-a-problem-for-LA-music-library-court-told