WHAT DOES THE EMINEM VS NATIONAL PARTY DECISION MEAN FOR MUSIC USERS?
A MUSIC SUPERVISOR EXPLAINS.
The recent High Court judgement on the Eminem vs. National Party case was a landmark decision not just for NZ, but for the rest of the world.
We work with music copyrights every day (licensing, publishing and creating) and can see the implications of this judgement will be far-reaching for everyone using music commercially. There are some big, red flags waving and you need to be aware of them.
An important thing to acknowledge firstly with this judgment is that the National Party did not “demonstrate a flagrant or intentional infringement “[456] because they did seek advice from music industry people [23] and believed they licensed the track legally, through the NZ office of AMCOS on behalf of Beatbox - who licensed the Eminem Esque track on behalf of a company called Labrador Entertainment in the US, who had sourced the piece from a composer called Michael Alan Cohen.
However, the judgement shows they did not seek advice from a music rights lawyer or a professional music supervision company - it’s fair to say that if they had, they may have decided not to proceed with the usage in the first place.
Had they been found to have acted recklessly, the damages of $600,000 plus interest may have been higher than the amount based on a hypothetical license fee between two willing parties [468]. And these damages were only in relation to the musical work and not the sound recording [5].
Imagine if Eminem Esque had been directly commissioned and composed to brief by you or your company.
Get good advice and listen to it
There have been many chortles and sniggers on social media about the National Party ripping off Eminem but to be fair, this could have happened to anyone. [AMCOS #01 + #03]
When talking to ad agencies, film companies and students about music licensing and copyright the questions usually asked are 101 things like:
“Isn't it OK if you change the melody enough/ change every fifth note/ invert a phrase/ only use three bars… so that it's not really the same song any more?” No it isn’t.
“We have pushed the boundaries before and nothing has happened - are you sure there is even a reason to be concerned? Aren't you being overly cautious?” No, we’re not.
“I have worked in the industry for years and we have often asked composers to mimic a song we can't afford - it was fine, so aren't you over-reacting?” No, and you’ve just been very lucky.
Songs are valuable and big songs are big assets; Lose Yourself is the jewel in the crown of Eminem's catalogue [389]. Of course the owners of this work were going to come out swinging once it was established their song had been copied and used in a political advertising campaign.
If it sounds like a copy, it probably is
For us there’s a simple litmus test - is the public likely to confuse a ‘sound-alike’ for its inspiration? Does it “bring to mind the original”? A copy is a copy if it sounds like a copy [58] What is the relation to the essence of the song or musical work?
The reason this case came to trial is that someone heard the National Party TVC and thought " Wow - the National Party licensed Lose Yourself by Eminem - how did they manage to do that? That would have cost them a fortune!”. Then that someone talked to someone who talked to the music publisher who they just happened to know and the publisher said "Really? But we didn't license that track”. And the publisher direct-dialed their lawyer who made the cease & desist call. Boom.
Even if someone in that position does take the contentious music down as soon as they’re asked to, if they have infringed the copyright, what happens next is they’ll either settle out of court or go to trial. Either way, there will be costs.
Sound-alike or knock-off?
A sound-alike such as Eminem-Esque is a bit like buying a Gucci™ knock-off from a side street vendor for a few dollars. However the nature of the music industry means the chain of rights to this musical work is clear. Gucci may not find that side street vendor or the factory that made the fake but you can find the person who wrote Eminem Esque by looking up who registered the song. Or you follow the money trail - who is getting paid.
There are many music libraries worldwide producing cheap sound-alikes, making them available online and then licensing them to unsuspecting businesses and producers.
Because they look like kosher companies then it all looks legitimate enough. [AMCOS #02] ‘Pretty legal’. Nothing pretty about it really. And if we were ever in any doubt we are not now.
The party that has probably suffered the most public humiliation has been the National Party in that they agreed to use the musical work and therefore infringed the copyright of the song.
But there’ll be a bit more downstream litigation yet to see where the buck stops [6].
How to make sure you’re protected
For anyone now a little nervous about licensing music from a music library, or getting music composed for commercial use, here are few steps to take to ensure you are protected.
1. Think about the song you are licensing or commissioning. Are you asking to use a song that sounds like another piece of music you know because you couldn’t afford the original or it wasn’t available? If the price is too good to be true and the title is, say, Doobie Brothers-lite then the odds are the licensor is trying to pass it off as a Doobie Brothers song and it's not worth the risk.
2. If you are going to produce a re-record of another song and have licensed the musical work (publishing) always ensure that the re-record sounds nothing like the original master, as there is copyright in a recording/performance as well and record labels don't take kindly to their catalogue being 'passed off’ without permission either.
3. It’s OK to brief a composer to write a piece that is in the same style, genre, feeling or mood as a piece of music, and popular music/big songs can be an inspiration, but it is clearly not OK to say ‘’take it as close to the original song as you can without infringing copyright”. Apply the test: will these lyrics or music in any way confuse the public? If you heard this track down a hall or through a wall would you think you’re hearing the original or something completely different?
4. Whoever is paying for the license should sign the license agreement or contract, because that’s where the buck stops.. Never sign ’on behalf of’ unless you have authority to do so, or you are fully aware of the consequences should something go pear-shaped.
5.The music synchronisation contract should state that the Licensor indemnifies the Licensee and gives a warranty, and that there is a clear understanding that:
- the Licensor has the right to license the work
- the terms of the agreement are clear and that all uses are included in the contract.
- the agent supplying the music knows exactly what they are licensing, in that they have taken care to find out if the work is a copyright infringement and done due diligence on the chain of ownership.
6. It is now very clear that publishers/writers worldwide do not condone the practice of sound-alikes and will move to protect their assets. Keep this in mind at all times. It’s not only political parties that are in the line of fire.
7. Just because something has been common practice does not mean it is legal. You may think you can get away with something, but seriously, paying and negotiating a fee with rights holders is a more cost effective way than pushing a boundary with consequences which are now very apparent and expensive.
8. If your client insists on you or your company producing a sound-alike, then make sure who ever insists signs a document stating they will take full responsibility should the shit hit the fan and be prepared to walk away from the job if you feel a party is being reckless.
9. Famous and big songs are expensive to license, because they are rare and unique. If you want to license a big song, expect to pay a good fee. Otherwise go down a different path. There will be many other songs you can look at which will do just as good a job.
If you would like Wayne Bell and/or Jan Hellriegel to come into your agency or business to talk about music licensing we are taking bookings.
Please contact us by email at or call +649 846 8892
Disclaimer: The information provided in this paper is designed to be helpful and is for reference only. The Authors and Aeroplane Music Services are not liable or responsible for the readers interpretation and it is recommended that legal counsel is sought should any party be unsure of the status and legality of the song they are licensing.
References
Link to The Judgement
Link to APRAAMCOS News item 30 October 2017
Footnotes
[AMCOS #01] "Our strong recommendation to clients is that if they wish to use a piece of production music that sounds similar to an existing third party musical work, then they should obtain their own independent legal advice as to the risk of infringing copyright in that that third party work prior to doing so." (AMCOS newsletter, November 2017)
[AMCOS #02] "AMCOS has over 2.5 million works in its constantly growing repertoire and has no involvement in the creation of those works. It would be practically impossible for AMCOS to assess and verify whether or not every work in its repertoire infringes copyright in another." (AMCOS newsletter, November 2017)
[AMCOS #03] It is important for AMCOS clients to understand that an AMCOS production music licence only grants the rights to use the particular licensed piece of production music for the permitted purposes. However, AMCOS can never provide a 100% guarantee that a piece of production music (or indeed any musical work) does not infringe copyright in other third party works. (AMCOS newsletter, November 2017)
Excerpts from Judgement
[5] There are three separate copyrights in Lose Yourself, namely, the original sound recording, the lyrics and the music. Copyright is a property right that exists in original works. This case concerns the copyright in the music only. The references to Lose Yourself in this decision, therefore, are to the musical work of Lose Yourself, unless otherwise stated.
[6] This proceeding is being heard in two parts. The first is a hearing to determine the liability of the National Party and the quantum of damages, if any. The second concerns a separate hearing to determine third party liability, if any. This decision deals with the first hearing only, namely, the issues of liability and quantum against the National Party as the alleged publisher of the infringing work. The third party liability hearing awaits the outcome of this trial. However, three of the third parties adduced evidence and made submissions in this hearing. Beatbox Music, an Australian based production music library and the fifth third party, adduced evidence on the musical history of “borrowing”. AMCOS New Zealand and AMCOS, the third and fourth third parties, which are the copyright collecting societies providing centralised copyright licensing services, adduced evidence and made submissions on the range of industry licence fees, in the event damages may be awarded.
[23] In late June 2014, Stan 3 sought reassurance about the track’s copyright and obtained it from Sale Street Studios, Beatbox Music, APRA AMCOS,11 among others. Stan 3 organised through Beatbox Music that an APRA AMCOS licence was paid to use Mr Cohen’s track Eminem Esque. In particular, Stan 3 received a written assurance on 18 June 2014 from Mr Mackenzie of Beatbox that “[t]he agreement we have with the publisher gives us assurance that the music does not infringe on copyright and is free to be used for production purposes.”
[58] The High Court considered the best test was whether the copy brought to mind the original.41 Hillyer J put it succinctly like this: 42 … a copy is a copy if it looks like a copy … [59] In a musical copyright case such as the present one, with the authorities reinforcing that the test is one of hearing and “ear recognition,”43 the Hillyer J formulation can more appropriately be adapted to this test: a copy is a copy if it sounds like a copy
[380] The Court must therefore assess the hypothetical bargain that would have been reached between a willing Eight Mile Style as licensor and a willing National Party as licensee.
[389] In my view, the high licensing value placed on Lose Yourself by Eight Mile Style for their “jewel in the crown” justifies a willing licensor to demand a high fee for its use. The National Party was also a very willing licensee, because they specifically wanted the Lose Yourself sound.
[434] In summary, the factors which I consider relevant to this case, therefore are: (a) Eight Mile Style have retained exclusive control of licensing, with Mr Martin responsible for negotiating the use of Lose Yourself; (b) Lose Yourself has been rarely licenced: three times willingly and many requests have been denied; (c) the purpose for the use was a political use in an unassociated country to Eminem; (d) the nature of the use is not what Eminem or Eight Mile Style would endorse; (e) the use was political advertising over 11 days and the advertisements were placed on YouTube, the National Party website and Facebook page; (f) despite the availability of other music, and the potential association with Eminem, the National Party wanted the sound of Lose Yourself or an equivalent; (g) if an artist wishes to retain control and rarely entertains licenses, the price for a hypothetical licence fee is higher rather than lower, despite the territory or the duration; and (h) the musical significance of copying the musical work was significant.
[456] While copyright infringement of Lose Yourself did occur, the National Party’s actions do not demonstrate: (a) flagrant or intentional infringement; (b) contumelious or total disregard for the plaintiffs’ rights; or (c) conduct that is so bad that it should be punished.
[468] Although copyright infringement did occur, the National Party’s actions were taken after receiving professional, commercial and media advice and were not reckless or contumelious of the rights of the copyright owner. No additional damages are awarded.
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