The National Party's use of 'Eminem Esque' for a 2014 election ad breached copyright of Eminem's track 'Lose Yourself'. Photo / Supplied
The National Party's use of 'Eminem Esque' for a 2014 election ad breached copyright of Eminem's track 'Lose Yourself'. Photo / Supplied
The National Party has been accused of being "extremely insulting", and of trying to duck responsibility for using a "weak ripoff", after a judge ruled it breached Eminem's copyright.
High Court Justice Helen Cull has ruled National Party's use of Eminem Esque for a 2014 election ad breached copyright of Eminem's track Lose Yourself, because the two songs had "minimal" differences.
Publisher Eight Mile Style has been awarded $600,000 in damages, plus interest calculated from June 28, 2014.
Eight Mile Style spokesman Joel Martin said they were happy with the result, after what had been a "distasteful" trial for them.
"It wasn't just slightly, it was overtly insulting.
"They made some sort of tactical decision to go after the originality of the song. That's not the right way to go about it.
"Certainly when it comes down to the originality of the song, we would do anything to defend it.
"The damages might seem significant , but we've spent around US$450,000 ($653,292) on legal fees. It wasn't about the damages, it was about the responsibility of the party causing this to happen.
"There's nothing 'pretty legal' about instructing others to provide you with something that you know is an infringement."
National's Steven Joyce infamously called the use of Eminem Esque "pretty legal", when problems first arose.
But Martin said National went to great lengths to avoid responsibilty for using a "weak rip-off".
He said Eight Mile Style hadn't thought through next steps including possible legal action against the tune's suppliers Labrador and Beatbox, but he wouldn't rule it out.
"We do take note that Labrador is actually from the United States here, and they were the originators or creators of this soundalike," Martin said.
"So we're going to look into that now. I guess we have to."
In her decision, Justice Cull noted that Eight Mile Style had exclusive control of the song's licensing, and rarely granted permission for the song to be used in ads.
However, no additional damages were awarded past the $600,000 "hypothetical licencing fee", because the National Party had taken professional, commercial, and media advice.
Justice Cull said that meant the party had not been reckless.
The then-Government fought its case in the High Court in May this year, accused of knowingly trying to sidestep licensing fees by using the track Eminem Esque.
Simpsons Solicitors acted for Eight Mile Style in court. Director Adam Simpson said the end result was a landmark decision that would have ramifications around the world.
"It's a strong warning to 'sound alike' music producers and their clients, and an indication of how fiercely Eminem, other writers, and their publishing companies take these infringements.
"I hope this means we see more original music in advertising, and that those people who want to use 'sound alikes' do so a lot more cautiously.
"These things are a continuum. This one is a song that clearly stepped over the line. At the other end, you have tracks that merely reproduce a theme or style of music.
"But when you start moving into the territory of taking the memorable aspects of a hit song, you very quickly get into trouble."
Simpson said the case set a precedent not only for New Zealand, but was likely to be influential in how copyright was handled in Australia, the UK and the US.
He said the case had been closely monitored by musicians and agencies around the world.
"It's very much a cautionary tale for sound alikes around the world."
The National Party said it was disappointed with today's verdict - and was now pursuing legal action against the supplier and licensor of the music.
The National Party bought the track Eminem Esque from a company called Beatbox, which in turn bought the licence from California-based music library Labrador.
"The High Court found that before using the track the party took extensive advice and sought assurances from industry professionals that the track could be used by the party," National Party president Peter Goodfellow said.
"The judgment has also found that the party in using the track did not act flagrantly or in a manner which justifies the party being further punished.
"We purchased the piece of production music from a reputable Australian-based music production library, who had purchased it from a US supplier.
"The music was licensed with one of New Zealand's main industry copyright bodies, the Australasian Mechanical Copyright Owners Society [AMCOS].
"Being licensed and available for purchase, and having taken advice from our suppliers, the party believed the purchase was legal.
"The party is now considering the implications of the judgment and the next steps."
Justice Cull's decision found the National Party committed three breaches of copyright, by communicating a copy of Lose Yourself to the public without a licence, by authorising the copying, and authorising the use of the advertisements.
She particularly noted the two tracks had close similarities in the drum beat, the melody, and the piano sections.
