“You Own It, You Better Never Let It Go”: Distinguishing Permissible Borrowing from Copyright Infringement in Music

“You Own It, You Better Never Let It Go”: Distinguishing Permissible Borrowing from Copyright Infringement in Music

Can alterations in the sonic bed, piano figures, guitar and string lines in a musical composition save it from damages for copyright infringement of the original? The High Court of New Zealand rules “No” in its decision Eight Mile Style, LLC v. New Zealand National Party. The dispute arose after the New Zealand National Party used a musical composition “Eminem Esque” during the election campaign in its advertisement materials including the video recordings and radio broadcasting. The soundtrack “Eminem Esque” was strikingly similar to an original musical work “Lose Yourself” by Eminem.

Eight Mile Style, the company copyright-holder of “Lose Yourself” brought an action on copyright infringement against the National Party for copying an original musical work protected by copyright. In response, the National Party agreed that “Eminem Esque” borrows certain chords from the composition “Lose Yourself”. The National Party admitted that such borrowing might have resulted in the similarities between the two musical compositions. However, according to the National Party, such borrowing is not tantamount to copyright infringement. The court underscored that to resolve the dispute; one must first distinguish between “illegitimate copying and permissible borrowing”. Such distinction is crucial for upholding the balancing role of the copyright law, which is to provide a just reward for the creator and to encourage creative process.

IP Osgoode's Prof. Carys Craig emphasizes that borrowing is an element of the creative process. Musicians often experiment with previously known chords and tunes to develop original compositions, a process that often results in the emergence of whole new genres of music. For example, such genres as jazz and blues represent the result of cross-fertilization of Western European and African traditions. Expansive copyright protection may curb this creative process if it penalizes borrowing in the music industry. In this case, any musician aspiring to create a composition will second-guess herself in fear of a potential lawsuit for copyright infringement. Limited copyright protection may not only strip the copyright holder of her reward but also result in the situation when the creators will borrow from already known compositions without adding any creative value. Such an outcome is problematic for creators, users, the music industry and public at large. The reason is that over a period of time such borrowing can produce a creative desert when all songs in the music charts sound alike. Copyright law is thus charged with striking a balance between the competing interests of the stakeholders.

In the Eight Mile Style case, the court agreed that musicians could be inspired by previous musical compositions and even use similar chords and melodies as building blocks for their own works. However, the unique compilation of these blocks in the musical work provides for distinctiveness and originality of the composition. Accordingly, to establish copyright infringement, the claimant must show either that a substantial part of the musical work or the essence of the work were copied. The analysis is therefore qualitative as the court looks beyond how many elements (chord-by-chord) of the original composition were replicated. The court accordingly ruled that “Lose Yourself” and “Eminem Esque” are “strikingly similar” and the latter “sounds like Lose Yourself” in a way that makes the tracks “almost indistinguishable”. Such an alteration of original musical work constitutes infringement when “the ear tells you that it is the same”.

The court ruled that the National Party used (including copying and reproduction) the song “Lose Yourself” without any authorization in its advertising campaigns. These actions constitute infringement under the Copyright Act. The court assessed the damages according to the user principle i.e., “the license fee that would have been negotiated between a willing licensor and a willing licensee”. In assessing damages, the court examined a number of factors such as, for example, the conditions under which the licenses for “Lose Yourself” have been previously granted by the Eight Mile Style and the territorial coverage of the broadcasting for Eminem Esque. After examining these factors, the court concluded that the license fee award against the National Party constitutes NZ $ 600 000. The court also noted that the National Party included Eminem Esque in its political campaign after obtaining professional advice from the third parties. The second hearing will determine whether the third parties will carry on the ultimate liability. Now we can only speculate whether the third parties will pay damages and at what amount. Yet it is clear that in assessing the third parties’ liability for professional advice, the court has to analyse the nature of relationship between the third parties and the National Party, to what extent the National Party relied on the given professional advice.


Ksenia Polonskaya is an IPilogue Editor and a PhD Candidate at Queen's University, Faculty of Law.