By Isaac Chen

With election season on the forefront of many people’s minds, many will recall the media flurry over the high profile legal battle that came before the High Court in May this year over Eminem’s song “Lose Yourself”. The judgment is yet to be made, as this case highlighted how complex the assessment of copyright infringement in relation to a musical work can be. Not only is the decision high profile, but also very important for New Zealand as there is a limited national law in this area. During the last general election in 2014, the New Zealand National Party released a television advertisement that depicted a rowing theme. The backing track of the advertisement was called “Eminem-esque” which as the name suggests, bore a resemblance to rapper Eminem's well-known hit “Lose Yourself”. The National Party asserted that the right to use the track was purchased from an established music library by the name of Beatbox. [1]

At the centre of the dispute, Eight Mile Style as the publishers of Eminem’s copyrights and therefore owners of the musical work “Lose Yourself” had alleged copyright infringement. The basis on their assertion was that there was a great similarity between “Lose Yourself” and the musical work “Eminem-esque”; so much so that the National Party’s use of the latter work was infringement. [1] As the National Party had purchased “Eminem-esque" from an Australian licensed music library, they were under the impression that the work was going to be free from any copyright issues if they used the work. They assert this in their arguments that copyright infringement, if there was any, was accidental, due to the purchase of the track being made in good faith. This meant that other parties further up the chain were actually responsible, should there be establishment of infringement. As such, Beatbox and another third parties were joined to the case. [2]

Musical Works Copyright

New Zealand law sets out that copyright protection will automatically arise when an original musical work is created.  Infringement of the copyright in the musical work occurs when there is a copying of a 'substantial part' of said work. [3] Whether a 'substantial part' has been copied is a question of fact instead of the amount or percentage copied being the determining factor. Rather, what is sought is whether the allegedly copied part is qualitatively substantial - if the most defining or well-known part of the copyright work has been copied.Looking to the United Kingdom, in 1934 the Court of Appeal had the issue of copyright infringement brought to them on the matter of Frederick Rickett's composition of the "Colonel Bogey March". What had occurred was that 20 seconds of the 4 minute song was played in the background of a news segment. The court ruled that due to the fact that anyone watching that news segment would be able to recognise the song, the use was infringement. [1]  Another well known case was from Australia in 2011, where the Federal Court had a similar approach. They found that two phrases of a flute riff reproduced in Men at Work's song "Down Under" constituted a substantial part because the part reproduced was an essential element of the famous musical work, "Kookaburra Sits in the Old Gum Tree". [1]In contrast, the United States Court of Appeal recently found that Led Zeppelin's song "Stairway to Heaven" did not infringe the opening passage of Randy Wolfe's song "Taurus". This was by and part to the jurors not being legally allowed to listen to recordings of “Taurus” to compare and instead only having to rely on the sheet music. As a result, they did not have enough evidence to suggest copyright infringement. [5] The case is now under appeal with the plaintiff claiming that the court erred in refusing to let the jury hear the full and complete composition of "Taurus". [1]One of the most highly publicised legal battles in the United States was that of the estate of Marvin Gaye in 2014 alleging copyright infringement by Robin Thicke and Pharrell Williams of Gaye’s song "Got to Give It Up" in their 2013 hit song “Blurred Lines”. The jury found the pair of unlawful copying and the  ordered the pair to pay the Gaye family $7.3 million. The judge later decreased the figure to $5.3 million, while awarding the Gayes 50 percent of the song's future royalties, making it one of the largest payouts in music-copyright history. [4]If just the sheet music comparison was judged on, “Got to Give It Up” and “Blurred Lines” are not greatly similar like the previous examples. But what was factored in this case was the studio arrangements: the strident walking bass, background chatter, and the use of the cowbell, were all taken into account. [4] These considerations formed the basis on which the court ruled that it was the ‘vibe’ of Gaye’s song that had been copied, something that wasn’t in the scope of protections of copyright. This case set a dangerous precedent in that can have severe implications for the future creation and production of music. Reflecting on the case, Pharrell said: "The verdict handicaps any creator out there who is making something that might be inspired by something else," [4]These examples are of many cases about alleged infringement of copyright in musical works, some with seemingly inconsistent results. What has stood out is that each case has been fact dependent. Determining if one musical work infringes another is a complex matter that requires an analysis of the building blocks of each of the musical works, including the musical structure, features, treatment, accentuation and orchestration. [4] It is not uncommon to seek evidentiary analysis from musicologists in these cases to aid the investigation, and both the National Party and Eight Mile Style brought in expert musicologists to analyse “Eminem-esque” and “Lose Yourself”.  

Speaking with a National v Eminem Musicologist

I spoke with one of the musicologists involved in the case, who expressed that this case is a turning point of music creation in New Zealand. Regardless of the amount of damages awarded, should the judge rule in favour of Eight Mile Style, there will be precedent in New Zealand to allege copyright infringement of a ‘style’ or ‘vibe’ (similar to the “Blurred Lines” decision).The musicologist also noted that there was a legal disconnect with typical musical practises, and there should be more regulations or guidelines to guide musicians in this currently unclear area. Reiterating parts of the arguments made for the National Party, they looked at elements of the songs that could not be considered as ‘original’, but rather as “musical building blocks” which nobody could claim ownership of. [6] As the backing music on a song was not considered the core part of the composition, it could not be considered owned.They also went through a breakdown of “Lose Yourself” and highlighted differences with “Eminem-esque”, including:

• Differences in melody
• Differences in timbre
• Simplification of structure in “Eminem-esque”
• The distortion of accented strums in its notes in “Lose Yourself”, but not in “Eminem-esque”

They suggested “Eminem- esque” was no more than a “vague approximation”, and the intent of the track was to create an ‘intentional’ resemblance that people would recognise, but not copy the ‘essence’ of “Lose Yourself” which can be found in the lyrics and melody. The advertisers would classify the resemblance as a certain ‘feel’ or ‘energy’ of a particular song being what they wanted to emulate. [6] They also highlighted that: "There is no musical meaning for the term 'essence' ... if there was something that could be called essence, it would be instead referring to the flow, lyrics, life, history, imagery, videos, engagements with the hip-hop community, and the fierceness, anger, vulnerability or timbre of Eminem." It is important to note that it is common for artists to use aspects of other songs to build their own piece. The elements used in Eminem-Esque were also taken from "hundreds" of other song as repetitive beats and guitar patterns, these elements not being original themselves. To assign ownership of these music elements would disrupt the music industry and really mess up notions of genre. The concept of genre is of particular musical elements or methods that is used by music creators for people to recognise their creations as conforming to certain bodies of musical works. As such, the ‘copying’ of certain elements has always been standard industry practise. If the copying of a collection of instruments with a cowbell and the people in the background shouting in the case of “Blurred Lines”, or the simplification of a repetition of three musical notes along with beat patterns in the case of “Eminem-esque” is legally considered copyright infringement, the way music creation occurs will change, with some genres of dance music potentially becoming the realm of a single artist only. [7]Going forward, as many musicians and musical creators may not have an understanding of the complexity of legal processes and the fine line between copyright infringement and originality, there is definitely a need for a clear guideline (produced by legal experts and musical creators and the musicologists that observe ongoing musical practises) that highlights the do’s and don’ts in musical creation if certain subjective musical practices are going to be assigned copyrights. On the flipside, the legal process may also need to upskill on how music is created and recreated, in order to better pass judgments on complex musical cases which are fact dependant.

When will the decision drop?

The two week trial concluded on 12 May 2017, with Justice Helen Cull reserving her decision in order to go over the evidence. She stated it might be a few months wait for the decision. Over three months have passed, and the question of whether or not the National Party has infringed copyright in the musical work "Lose Yourself" could be answered any day now. [8] The case may end up turning largely on its facts - who really had permission and who knew what. The lesson of this case is a reminder of checking for consent from the owner of a copyright work, even when the musical work is with third party suppliers. This means getting satisfactory evidence that the supplier has the right to grant the license, together with contractual assurances from the supplier before using the work. [1]

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References:

1. Earl Gray and others "Lose Yourself ft Eminem and the New Zealand National Party" (August 28 2017)  Simpson Grierson <https://www.simpsongrierson.com/articles/2017/lose-yourself-ft-eminem-and-the-new-zealand-national-party>.
2. Eight Mile Style LLC v the New Zealand National Party [2015] NZHC 2409.
3. Copyright Act 1994.
4. Jordan Runtagh "Songs on Trial: 10 Landmark Music Copyright Cases" (June 8 2016) Rolling Stone <http://www.rollingstone.com/music/lists/songs-on-trial-10-landmark-music-copyright-cases-20160608/robin-thicke-vs-marvin-gaye-2014-20160608>.
5. Kory Grow "Led zeppelin Win in 'Stairway to Heaven' Trial" (June 23 2016) Rolling Stone <http://www.rollingstone.com/music/news/led-zeppelin-prevail-in-stairway-to-heaven-lawsuit-20160623>.
6. Melissa Nightingale "Battle between Eminem and National Party rages on in High Court" (8 My 2017) NZ Herald <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11851500>.
7. Elliot Sim "US Blurred Lines decision could be applied in NZ" (date unknown) New Zealand Law Society <https://www.lawsociety.org.nz/news-and-communications/latest-news/2015/us-blurred-lines-decision-could-be-applied-in-nz>.
8. Author Unknown "The Big Read: Did the National Party rip off Eminem's Lose Yourself?" (12 May 2016) NZ Herald <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11854830>.