“Will the real Eminem song please stand up”

October 2017

Sound-alike recordings are used to imitate the sound of a popular piece of music, an artist sound or genre style. 

There have been numerous sound-alike litigation cases, such as a 1980’s case brought by Bette Midler in relation to a sound-alike version of her cover of ‘Do You Wanna Dance’ (originally recorded by Bobby Freeman). In 2007, musician Tom Waits objected to the use of a sound-alike song in an advertisement by Opel cars. The parties went on to settle the claim.

Eight Mile Style / New Zealand National Party

In a 2017 sound-alike recording case in New Zealand, the High Court awarded rapper Eminem’s publisher NZ$600,000 in damages after ruling that the National party had infringed copyright in the song ‘Lose Yourself’.

The political party had not used the actual song, instead using a sound-alike track titled ‘Eminem Esque’, which was found to be “sufficiently similar” to the 2002 Eminem original.

Eight Mile Style who own the copyright in Lose Yourself sought damages against the National Party after ‘Eminem Esque’ was used in numerous public broadcasts such as adverts on television and the internet and at a Party conference. The television adverts were played 186 times on New Zealand television between 20 to 30 August 2014.

Originality / Infringement

The National party challenged the originality of Lose Yourself, submitting that it was substantially borrowed from other pieces of music. Assurances had also been sought and provided by ‘Eminem Esque’s’ licensors that there was no issue from a copyright perspective.

Cull J found that Lose Yourself was an original work, concluding that “The distinctive sound of Lose Yourself is not limited by a “melodic” line, but is a combination of the other instruments, particularly the guitar riff, the timbre, the strong hypnotic rhythm and the recurring violin instrumentation and the piano figure. It is no coincidence that Lose Yourself received the 2003 Academy Award for Best Original Song. I find that Lose Yourself is a highly original work”.

Further the court concluded that the “differences between Eminem Esque and Lose Yourself are minimal. The close similarities and the indiscernible differences in drum beat, the “melodic” line and the piano figures between Lose Yourself and Eminem Esque make Eminem Esque strikingly similar to Lose Yourself.”

Damages

The damages awarded in the case were based on a “user principle” – the hypothetical licence fee that would reasonably have been charged for permission to use Lose Yourself in the campaign run by the National Party. As advice had been sought by the National Party regarding the use of Eminem Esque however, the National Party was not found to be reckless and no additional damages were awarded.

Sound-alike songs are commonly used where a party is either unable to licence a piece of music, or wishing to avoid paying an expensive fee to licence such a piece. Gary Williams, a lawyer for Eight Mile Style, Eminem’s publishing company told the court that the rights to lose yourself were “enormously valuable” and that “Lose Yourself is the jewel in the crown of Eminem’s catalogue”. The composition has only rarely been licensed for use, and never as part of a campaign by a political party.

This decision is a stark warning to producers of ‘soundalike’ music and their clients that they cannot simply avoid licence fees by using imitation copies of an artist’s work.

UK Perspective

The case serves as a reminder to those in the UK that care must be taken whenever either using any element of a musician’s works without permission or producing anything similar to those works. Each case is decided on its own facts but the UK courts would be just as robust in enforcing a musician’s copyright works against third party infringers and imposing substantial damages if those damages are justified.

This update was prepared by HGF IP Solicitor Christopher Robinson.  If you would like further advice on this or any other matter, please contact Christopher. Alternatively, you can contact your usual HGF representative or visit our Contact page to get in touch with your nearest HGF office.