8:51am PT by Eriq Gardner
New Zealand National Party Ordered to Pay for Infringing Eminem's "Lose Yourself"
On Wednesday, the Eminem publishing outfit of Eight Mile Style LLC took victory in a copyright lawsuit against the New Zealand National Party for infringing Eminem's "Lose Yourself" in campaign advertisements. The plaintiff was awarded about $414,000 in damages. With interest added, that amounts to an almost $482,000 judgment (in American dollars).
The case focused on how the National Party used a sound-alike recording in its election ads. The track was literally called "Eminem Esque," which certainly played a role in helping New Zealand High Court Justice Helen Cull come to a conclusion of intended imitation. In fact, she wrote that the obvious inference from the title was that the writer of "Eminem Esque" had "Lose Yourself" in front of him when composing the rip-off. The justice also regarded testimony from musicologists to note the close similarities and indiscernible differences in drum beat, melody and piano. Ultimately, the judge came to the damages award by examining a theoretical licensing fee. She didn't think additional damages were warranted.
Still, the highlight of the whopping 134-page decision (read here) dealt with originality.
Only original works are entitled to copyright protection. In both the U.S. and New Zealand, the bar for what's deemed original is a low one.
Nevertheless, the National Party called evidence and had experts discussing popular music to support its proposition that "Lose Yourself" wasn't really original. The defendant argued that elements in the song were too commonplace. In particular, one musicologist testified it sounded too much like Led Zeppelin's "Kashmir." What's more, the National Party seemed to question protection for a wide swath of modern music when musicians routinely take influences and borrow musical components.
"The copying of musical ideas and commonplace building blocks and motifs from a musical work, which are not themselves original, has been considered by the English and Australian courts in determining whether there has been copyright infringement of a musical work," writes Cull in synthesizing the arguments and scholarly research. "The use of commonplace elements or cliches has formed part of the determination of the originality of musical works, with an acknowledgement that many writers of great music have used cliches to produce masterpieces."
Cull adds that inspiration is undeniable and that artists each have "musical childhoods." But she adds that one can "borrow" and still be distinctive. During the trial, she heard many examples of alleged similarity including Los Lobos' "La Bamba" and The Beatles' "Twist and Shout."
These songs, she writes, "provide a modern day demonstration of Johann Mattheson’s thesis that permissive 'borrowing' must return the object borrowed with 'interest.' They have transformed the 'borrowings,' the same musical elements, to make something different with them."
OK, so what happens when appropriation isn't literal? If "Eminem Esque" imitated "Lose Yourself," but not exactly, why doesn't the alteration in melody similarly get credit as being outside the scope of Eight Mile's copyright? And what's of most interest? Is it the melody? Or do the rhythm, percussion, or instrumental riffs count as well?
In addressing such questions, Cull nods to how copyright protection seems to be extending beyond melody and how one American academic when discussing the verdict in the "Blurred Lines" case, wrote how that outcome "is a symptom, not a cause, of confusion over what copyright covers."
Cull focuses on what our ears tell us: aural recognition is key.
"As the musical copyright authorities reinforce, it is not sufficient, therefore, to simply alter a melody line, to show that notes have been changed, when the sound remains the same or similar to the original," she writes.
Ultimately, Cull determines that "Lose Yourself" is original, crediting "compelling" evidence from Eminem producer Jeffrey Bass about the year and a half he composed the song and how he intended to create a tense, hypnotic feeling with the guitar riff.
"Despite the commonality of the chords used by Mr Bass (as both musicologists agreed) and despite the common use of progression from the fifth to the sixth chord as 'common,' the guitar riff is striking in its intensity," the decision states. "The accompanying instruments, drums, violin and piano are arranged in such a way that the arrangement gives the music of Lose Yourself its own individual and, I consider, distinctive sound."
Cull adds that the sounds of "Lose Yourself" and "Kashmir" are indeed different even if there's a similar chord pattern.
As for defendants' song, she writes, "Having listened to all the evidence, examined the notation examples and replayed the advertisements and track exhibits, with the close similarities and the indiscernible differences between Lose Yourself and Eminem Esque, I am in agreement with Dr Ford’s conclusion when he said: “Put simply, Eminem Esque is strikingly similar to Lose Yourself in all of its major features.”