“Hate speech” suspicions about Eminem’s music led some working on a National Party ad to reconsider using sound-alike music for a 2014 campaign ad.
A High Court judge and nine lawyers listened to rap song Lose Yourself – with its “mother f……” references – at the start of the court case over the National Party’s use of the sound-alike composition called Eminem Esque in an advertisement.
Music publisher Eight Mile Style says it holds copyright for the original musical work from the US rapper Eminem – real name Marshall Mathers III – Luis Resto, and Jeff Bass. It claims the National Party’s use of Eminem Esque infringes the Lose Yourself copyright.
Opening the case for Eight Mile Style and an associated copyright administrator, lawyer, Garry Williams said someone working on the National Party ad raised concerns the music sounded like Eminem and thought the rapper had links to “hate speech”.
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Alternative music was sought but those working on the ad reverted to the Eminem Esque track.
And it was also clear from emails that the subject of copyright was raised and that it was thought that paying to use the sound-alike track under a licensing agreement protected them, Williams said.
They were prepared to take the risk because they thought 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.
A company, Stan 3 Ltd, was incorporated to do campaign work. “Stan” was Nats spelt backwards, and it was the third time such an entity had been used in a campaign.
The National Party and party manager Gregory Hamilton are the defendants. Williams said the National Party was claiming “innocent infringement” but the background documents showed that defence must fail.
At the start of what is expected to be a six-day hearing at the High Court in Wellington on Monday, Justice Helen Cull said the hearing was about the liability and quantum of any damages between the publishers and the National Party.
Williams said Lose Yourself was the “jewel in the crown” of a musical catalogue. It had topped charts around the world and won both an Academy Award in 2003 and Grammy awards.
“In short, Lose Yourself is a very valuable song,” he told the judge.
Its message about losing yourself in the moment and not missing opportunities in life made it notable for the public, WIlliams said.
Licensing of its use was closely controlled and would expect to command fees in the millions of dollars. It had only rarely been allowed to be used in advertisements.
Because of the tight control it was generally known that Lose Yourself was not usually available to be licensed, Williams said.
He played the judge the works involved, the Eminem original, Eminem Esque, and two National Party campaign advertisements. Then Prime Minister John Key’s face remained frozen on a television screen after the sound stopped.
It was alleged the plaintiffs 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”, will be the subject of evidence, including confidential licence agreements, and confidential evidence about them.
Eight Mile Style is a music publisher and Martin Affiliated is a copyright administrator. Williams said a copyright administrator sought to administer copyrights, maximise revenues, find licensing deals, collect and enforce the rights, and register copyright in countries if needed.