Eminem vs. New Zealand’s National Party in Soundalike Copyright Trial

New ZealandHip Hop mega-artist Eminem sued New Zealand’s conservative National Party this month for copyright infringement. The suit alleges that the soundtrack, used in a 2014 National Party TV ad, was copied from Eminem’s iconic Lose Yourself and breached the copyright of Eight Mile Style, Eminem’s publisher.

The National Party said it licensed the rights to the soundtrack, titled Eminem Esque, from the Australian-based music library Beatbox Music.

Garry Williams, the lawyer for the plaintiff told the court that Lose Yourself is the ‘jewel in the crown of Eminem’s music catalog’ – the licensing of which is tightly controlled. ‘They would never allow the use of a re-recording of the musical work unless that re-recording involved the participation of the original artist.’  [Skynews, May 1, 2017]

He said the Detroit rapper’s hit was “iconic,” having won an Academy Award, two Grammys, and critical acclaim and that meant rights to the work were “enormously valuable” and were strictly controlled by the publisher, which had rarely licensed them for advertising purposes. [ABS CBN News, May 1, 2017]

Lose Yourself has indeed been licensed in the past. It was used to great effect in a Super Bowl ad in 2011. The ad, Imported from Detroit for Chrysler, was built around the guitar riff to the song.  In this case,  Lose Yourself was legally licensed (paid for) and used with the artist’s permission. Eminem appeared in the ad giving a boost to his hometown of Detroit.  The success of the Imported from Detroit campaign more than likely contributed to Lose Yourself becoming “the jewel in the crown of Eminem’s music catalog”.

Eminem Esque, the song the National Party licensed, has the same urgent, pulsing beat of Eminem’s song.

Here is the ad spot.

While there is little doubt that the soundalike Eminem Esque emulates the main riff of Lose Yourself, they are not identical.

Lose Yourself makes use of an insistent eighth note guitar riff which alternates between the pitch A for one measure and then moves to B-flat for one measure. The real sonic power of the riff is the guitar which, performed with some very fine musicianship, creates high interest using different accents applied to notes in the riff.

Eminem-esque’s version of the guitar line is this.

It is clearly different (and in no way as interestingly performed as in the Eminem track). It incorporates notes not found in Lose Yourself. It’s true; the guitar is featured prominently in the mix just as in Lose Yourself. Eminem Esque is also in the same key as Lose Yourself but it adds sustained synthesizer strings and harmonies that are not found in the Eminem recording.

Identical? The answer is no. I’m sure this is what the creators of Eminem Esque thought as well. They had made enough change in their soundalike that, though they were drawing on Lose Yourself, they had created enough difference that their track would be free from a copyright infringement claim.

What makes things difficult is that the infringement in question centers around a guitar riff. There is no real melody here. Most infringement cases compare the vocal line – the song’s melody – one to another.

The precedent for Eminem’s claim of infringement is the 2015 case against Blurred Lines brought by the children of Marvin Gaye, who sued for copyright infringement claiming Blurred Lines copied Gaye’s hit Got to Give it Up.

“Rather than hinging on a particular set of notes [melody], Blurred Lines was found in violation of copyright based purely on the atmospheric similarity to Gaye’s Got to Give it Up — a “vibe” that’s a result of production choices and the rhythm pattern.”  [ Business Insider, Sept 16 2016]

This verdict has been appealed. It has also been criticized by many composers, musicians, and songwriters. In the summer of 2016 more than 200 music creators signed a legal brief supporting Pharrell Williams’ appeal of the $5.3-million judgment handed down against him and Robin Thicke in 2015.

The brief states:

“Quite clearly, the verdict in this case, if based upon the music at all, was based upon the jury’s perception that the overall ‘feel’ or ‘groove’ of the two works is similar, as songs of a particular genre often are. In essence, the Appellants have been found liable for the infringement of an idea, or a series of ideas, and not for the tangible expression of those ideas, which is antithetical to Section 102(b) of the Copyright Act.

“Such a result, if allowed to stand, is very dangerous to the music community, is certain to stifle future creativity, and ultimately does a disservice to past songwriters as well,” the brief states. [Los Angeles Times August 31, 2016]

It could be that what constitutes copyright infringement is changing. If the Blurred Lines decision is the new precedent, then it’s not only a melody line that’s copyrighted it’s a “feel.”

Eminem’s lawyer’s argument against the use of Eminem Esque is that the song taps into the collective associations and cultural connections that listeners’ have with Lose Yourself. It appropriates a listener’s cultural memory of a hit song, and that memory has a huge value. This is no longer about comparing musical notes on a page. It is about claiming infringement upon a musical work’s worth to the zeitgeist.

If using a similar “groove” or “feel” or “vibe” or 2 note, half step riff can be claimed as legal grounds to sue for infringement; we are into a whole new era of copyright jurisprudence.

Listen to this.  The linked page provides an A/B comparison of the 1970s band Chicago’s 25 of 6 to 4 with Led Zeppelin’s Babe, I’m Gonna Leave You. Same riff, same key, same notes, basically the same rhythm. Both of these songs have gone on to be Classic Rock standards.

As of this writing, there’s been no verdict in the case against the usage of Eminem Esque. The appeal of the Blurred Lines decision has also not been settled. Victories in these two cases would solidify a new precedent in copyright law.

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