Nats rapped on knuckles in Eminem case
After a lengthy delay, Eminem’s publishers have been successful in their copyright infringement suit against the National Party.
As a result, National has been ordered to pay $600,000, with interest, from June 28, 2014. The sum is a hypothetical licence fee it would have paid if it had asked for permission to use the music in its campaign advertising.
The Detroit-based publishers of the rapper's music had sought damages for copyright infringement against the now opposition party.
The publishers claimed the song used in the 2014 election campaign ad by the National Party was a rip-off of Lose Yourself, which features in the Eminem’s 8 Mile movie.
Wellington High Court judge Helen Cull says in her 132-page decision that, while National disagreed, the weight of evidence and her own aural impression found that the track used for the ad, known as Eminem Esque, sounded like Lose Yourself.
The judge said Lose Yourself was unique and high-value work, "which has been licensed rarely to preserve and increase its rarity and value. Eight Mile Style has imposed strict creative controls on any licence to maintain the integrity of the work and the personal interests of the authors."
While the song was used for just 11 days, there was intensive use in that time, with the 30-second National Party advertisement screened 186 times and in the opening broadcast Eminem Esque was played eight times in that period, the judge said.
While the National Party had pleaded the positive defence of innocent infringement under the act, at the close of trial the National Party did not pursue or rely on that defence, the judge added.
While the case wrapped on May 12, it took longer than the usual three months for delivery of the judgment.
In a minute issued on July 31, the judge says “I had anticipated issuing my judgment in this matter before now.”
However, it adds, “due to work pressures and the complexity of the issues, I do not anticipate the release of this judgment until mid-October.”
Justice Cull’s minute indicates the court had to deal with confidentiality issues over what would be referred to in the judgment to protect certain information.
A statement from National president Peter Goodfellow said the party was disappointed by the decision.
“However, the High Court found that before using the track the party took extensive advice and sought assurances from industry professionals that the track could be used by the party.
“The judgment has also found that the party, in using the track, did not act flagrantly or in a manner which justifies the party being further punished."
Mr Goodfellow said the party is now considering the implications of the judgment
“We already have a claim against the suppliers and licensors of the track,” he added.
Ahead of the decision, barrister Graeme Edgeler told NBR any payment made to Eminem's publishers could have been a breach of electoral spending rules. However, even if there were a potential breach, the Electoral Commission would be out of time to prosecute the party.
Read the full decision here.
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