National Party's ad 'bland' and using Eminem song would never be allowed

Monday, 1 May 2017

Musician Eminem at a New York premiere. His Oscar-winning song Lose Yourself is at the heart of a High Court case in Wellington. (File photo)

The National Party could have been asked to pay US$1 million to use the Eminem song Lose Yourself, even if the copyright holder allowed the use, a court has been told.

The party's 2014 campaign ad, using a musical work with similarities to Lose Yourself, was 'bland and perfunctory', and not in the spirit of the Lose Yourself song, which encouraged the taking of chances, a representative of the copyright holder said.

The National Party is in court today defending itself from allegations it used an Eminem song without permission in an election advertisement in 2014.

Detroit-based copyright administrator Joel Martin said the holders would never have granted the party permission to use the original work. Use could have cost US$750,000 to $1m if permission had been given, but a fee after unauthorised use would have been higher.

The National Party and its manager/secretary Gregory Hamilton are being sued in the High Court at Wellington over the music used in the ad, which allegedly infringed copyright.

**READ MORE:

The 2014 National Party advert showed a rowing team, with a voice speaking over a Eminem-style music track.

* Eminem settles lawsuit over downloads

* Facebook sued over Eminem song

United States music copyright representative Joel Martin leaves court with lawyers after the first day of the copyright infringement hearing in the High Court at Wellington.

* Eminem sues National over election ad

* Copyright case over Eminem song continues against National Party

* National Party wants to divide and beat Eminem rap music claim**

The ad used a 'soundalike' track called Eminem Esque, by composer Michael Cohen. The original song was the work of rapper Eminem – real name Marshall Mathers III – along with Luis Resto and Jeff Bass. It won an Academy Award and Grammys.

US companies Eight Mile Style and Martin Affiliated have sued as part-owners of the copyright and being responsible for administering it. Some details of the ownership arrangement were confidential.

Martin, the manager of Eight Mile Style and principal in Martin Affiliated, came to New Zealand to give evidence against the National Party on Monday.

He said he and the writers insisted on creative control and final approval on the rare occasions Lose Yourself was licensed for use in advertisements.

The National Party adverts were played 186 times on television before being taken down over a complaint that the music used infringed copyright for Lose Yourself .

Justice Helen Cull heard Lose Yourself – with its 'mother f……' references – at the start of the court case.

Opening the case for Eight Mile Style and Martin Affiliated, lawyer Garry Williams said it was clear from emails between those working on the ad that the subject of copyright was raised, and that it was thought that paying to use the soundalike track under a licensing agreement protected them.

They were prepared to take the risk because they thought that, if any claim arose, they would not be the ones who were liable, Williams said.

However, no-one thought it sensible to obtain expert legal advice on the issue, he said.

Between August 17 and August 30, 2014, the ads were played at least 186 times on television.

A company, Stan 3 Ltd, was incorporated to do campaign work. 'Stan' was Nats spelt backwards.

Williams said the National Party was claiming 'innocent infringement', but the background documents showed that defence must fail.

Greg Arthur, lawyer for the National side of the case, said it would be important to assess what parts of the music were original, and how original they were.

The defendants' case was that the originality of Lose Yourself was in the melody, and that melody was not in Eminem Esque. The name Eminem Esque would have interested the plaintiffs, but copyright infringement was not proved in the name of a work.

At the start of what is expected to be a six-day hearing, the judge said the case was about the liability and amount of any damages between the US companies and the National Party.

Williams told the judge Lose Yourself was a very valuable song.

It was alleged the National Party had infringed the copyright without permission, communicating it or a substantial reproduction of it, or an adaptation of the musical work.

At the heart of the case was Eminem Esque and what the plaintiffs said was a substantial reproduction of Lose Yourself, Williams said.

National has previously said it had permission from a third party to use the music. But the 'waterfall' of licensing arrangements and warranties about the legal position were expected to be dealt with at a separate hearing, if necessary.

It was expected that parts of the case would be heard in closed court due to the confidentiality orders the judge made 'on the grounds that highly commercial, sensitive, and confidential information' was involved.