## Facts

- Eight Mile Style, LLC and an affiliated rights holder owned a 50% interest and held an exclusive licence to the remaining 50% of the musical work “Lose Yourself.”
- The New Zealand National Party and its General Manager/Secretary used an instrumental “sound-alike” track, “Eminem Esque,” in televised and online campaign advertisements and at a party conference during the 2014 general election period.
- The advertising agency initially used “Lose Yourself” as a temporary reference track and then sourced “Eminem Esque” through a production-music licensing chain, obtaining a synchronisation licence from an intermediary.
- After the advertisement aired extensively, public commentary highlighted the similarity between “Eminem Esque” and “Lose Yourself,” and the Party replaced the music.
- Eight Mile Style sued, alleging “Eminem Esque” substantially reproduced “Lose Yourself” and that synchronisation and broadcasting of the sound-alike infringed copyright under the Copyright Act 1994 (NZ), seeking compensatory and additional damages.
- The Party denied infringement, contending similarities reflected unprotectable musical “style” or commonplace elements and asserting it had paid for a licence to use “Eminem Esque.”

## Issues

1. Whether the plaintiffs had enforceable rights in New Zealand and whether copyright subsisted in “Lose Yourself” as an original musical work.
2. Whether “Eminem Esque” copied “Lose Yourself” by reproducing the whole or a substantial part, shown through objective similarity and a causal connection.
3. If infringement was proved, how damages should be assessed under the user principle and whether additional damages were warranted under Copyright Act 1994 (NZ) § 121.

## Decision

- The court held the plaintiffs had standing as part owners and exclusive licensees and could sue in New Zealand based on the statutory protection afforded to works of authors from prescribed foreign countries.
- The court held copyright subsisted in “Lose Yourself” as an original musical work.
- The court found “Eminem Esque” was a substantial reproduction of “Lose Yourself,” supported by objective musical similarity and the contextual evidence that “Lose Yourself” served as the source reference for the sound-alike.
- The court held the Party’s synchronisation and broadcast use infringed the plaintiffs’ copyright; an intermediary licence could not authorise use of a work that was itself an infringing reproduction.
- The court awarded NZD 600,000 plus interest, including compensatory damages assessed under the user principle and additional damages reflecting flagrancy and deterrence.

## Legal Principles

- Copyright in a musical work may be enforceable by a part owner who is also an exclusive licensee of the remaining interest, and foreign works may be protected where statutory eligibility conditions are met.
- “Originality” for subsistence focuses on sufficient skill and labour in the work as a whole; individual components need not be novel.
- Copying is established by showing (1) reproduction of the whole or a substantial part (qualitative assessment), (2) objective similarity, and (3) a causal connection that the defendant’s work was derived from the claimant’s work.
- Even if individual musical elements are commonplace or unprotectable when viewed alone, a protectable substantial part may lie in the particular combination, arrangement, and resulting integrated sound.
- A synchronisation licence from an intermediary does not excuse infringement where the licensed track is an unauthorised reproduction of another’s protected work.
- Damages may be assessed using the user principle (a reasonable hypothetical licence fee), with additional damages available where conduct is sufficiently blameworthy to justify deterrence and condemnation.

## Conclusion

The High Court found that a campaign’s use of a deliberately evocative sound-alike track infringed copyright because it reproduced a substantial part of the protected musical work, and it imposed substantial user-principle and additional damages to reflect the value of the use and the flagrancy of the conduct.


Eight Mile Style, LLC v. N.Z. Nat'l Party, [2017] NZHC 2603 (N.Z. High Ct. 2017)