The success of the New Zealand National Party’s 2014 election campaign may have been in part due to their music choice for a series of nationally-broadcasted advertisements.

However, similarities between the National Party’s ad track and US rapper Eminem’s 2002 smash Lose Yourself did not go unnoticed by New Zealand’s High Court, it seems.

On 25 October 2017, New Zealand’s High Court held that the Nationals’ song ‘substantially copied’ Lose Yourself.

The decision may not come as a shock to the NZ public, given that the copying was thinly veiled to begin with – the ad track’s title being Eminem Esque, but the decision was not made lightly, with the Court considering evidence from two musicologists/doctors (Dr Dre not included).

The Court found the Nationals infringed the copyright in Lose Yourself in not one, but three different ways: communicating the copy to the public, authorising the copying of Lose Yourself in the National Party’s ads, and authorising the ‘use and/or deployment’ of the ads.

The case reiterates the importance of the principle that, for copyright infringement to occur, it is not necessary that the whole song be copied, nor that the copying be ‘exact’. Infringement can occur if a substantial part of the song is copied, or even if ‘what has been copied contains the essence of the copyright work’.

The decision also highlights the sensitive nature of copyright generally. Here, the National Party sought out advice from advertising and music licensing industry ‘experienced professionals’ regarding use of Eminem Esque, which was sourced from a production music company to begin with. The Court found these steps to be ‘appropriate’ and rejected Eminem’s legal team’s submission that the Nationals should have also sought legal advice regarding the potential risk of copyright infringement. Consequently, no additional damages for ‘flagrant’ infringement were awarded to Eminem’s side.

Still, the damages awarded in respect of the copyright infringements outlined above totalled NZ$600,000. The political ads in question were played 186 times on New Zealand television, among many other instances of exposure.

It has been reported that Eminem himself was not in fact consulted in relation to the case, but of the damages he personally receives, all will be donated to hurricane relief efforts.

By Adil Dart