National Party's bill for ripping off Eminem music drops $375,000

Tuesday, 18 December 2018

Eminem performed Lose Yourself and was one of its three creators, but was not directly involved in the court case. (File photo)

The National Party has won an appeal against $600,000 damages it was ordered to pay for having used a rip off version of an award winning Eminem rap song in a 2014 campaign ad.

It should instead pay $225,000 damages, the Court of Appeal ruled on Tuesday.

One of the composers of the Oscar-winning Eminem song Lose Yourself, Jeff Bass, was a witness at the High Court hearing over the copyright. (File photo)

The party appealed against a High Court judge's decision to award $600,000 damages for using a track called Eminem Esque, a 'sound-alike' version of the music to Lose Yourself, which breached the Lose Yourself copyright.

The Court of Appeal said several factors, including the reluctance of the copyright holders to have the Eminem music used for political purposes, were used to inflate the damages figure beyond what was appropriate.

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Two American companies, Eight Mile Style and Martin Affiliated, respectively own half the copyright, and administer it for Lose Yourself, performed by Eminem. They cross appealed, asking for the damages to be increased.

Their cross appeal to have extra damages awarded was dismissed. They had wanted the party to pay more for having been reckless or turned a blind eye to the risk of copyright infringement, but the court said that claim was not sustainable.

Spokesman for the two American companies, Joel Martin, would not comment until he had spoken to his attorney about the court's decision.

Eminem is due to perform in Wellington in March 2019.

The National Party paid $4802 for the licence to use the music library track Eminem Esque, after a decision was made to look for music with a syncopated beat like Lose Yourself, to match the strokes of rowers in a 2014 general election campaign advertisement.

The similarity to Lose Yourself brought threats of legal action, and the music was replaced after 11 days.

National Party president Peter Goodfellow welcomed the decision to reduce the damages.

He said the Eminem Esque music was bought from a reputable Australian-based production library, originally bought from a United States supplier.

In the High Court, Justice Helen Cull had decided that Lose Yourself was a 'highly original' work and the 'sound-alike' version Eminem Esque substantially copied it.

The damages had been assessed in the High Court having regard to factors such as, what might have been negotiated to use Lose Yourself, assuming both sides were willing, increased to take account of a premium for political use, potential loss of commercial value of the song and loss of creative control.

But the Court of Appeal said the damages calculation had started from too high a figure. Political use warranted a higher fee but not on the basis the copyright holder did not personally endorse the message of the advertisement.

The fee to use Lose Yourself would have been close to the top of the range in New Zealand, which the court set at $225,000.

The party and its secretary, Greg Hamilton, did not appeal against the finding that Eminem-Esque infringed copyright in Lose Yourself.

The National Party has previously said it will try to pass on any liability for damages to those involved in choosing, sourcing, providing, or licensing the Eminem Esque music.

Following the Court of Appeal decision, Goodfellow said the party would consider the decision and decide what its next steps would be.

Eminem Esque was the work of Los Angeles composer Michael Cohen, who was named as a party to the proceedings, but refused to become involved.