The National Party has been hit with a large damages bill, after being found to have infringed copyright in Eminem’s song Lose Yourself.
In Eight Mile Style v New Zealand National Party  NZHC 2603 [25 October 2017], the High Court awarded the musical artist’s publishing company $600,000 in damages, plus interest. And there may be more pain to come, with a costs award also likely.
As has been widely reported, the National Party used a song called Eminem Esque in its 2014 election campaign. Eminem Esque was clearly inspired by Lose Yourself (as the track name indicates), but the similarities between the two tracks are striking. It would have been surprising if copyright infringement had not been found. It can only be assumed that the National Party did not settle this matter before it went to a hearing because it could not do so on terms it was able to accept.
The National Party had received assurances from professionals within the advertising and music licensing industries that Eminem Esque did not infringe copyright and was free to be used. That advice was clearly wrong, and the National Party may now have legal remedies against those professionals, as well as against the publisher of Eminem Esque and the royalties collection agency APRA AMCOS.
But the extent to which the National Party can seek recovery against others will depend on the licences and other agreements it entered into. Did those agreements include warranties or indemnities covering copyright infringement? And if they did, were they subject to any limitations or exclusions of liability? While it is common in a copyright licence for the licensor to indemnify the licensee in the event of an infringement claim, it is also common for the licensor to limit its liability to the licence fees payable under the licence.
The Eight Mile case is a good reminder that when it comes to musical copyright infringement, if it sounds like a copy it probably is. It seems surprising that more than one person signed off on the use of Eminem Esque, given the clear similarities between it and Eminem’s famous song.
It is also a reminder that even an “innocent” infringement (i.e. the National Party had sought assurances it could use the track without infringing copyright) will not save you if you copy someone else’s work. It is not a defence to copyright infringement to say “I didn’t know it was an infringing copy”. So if you are taking a licence of a copyright work, do your homework, and get legal advice if you are unsure. Make sure you have warranties and indemnities from the licensing parties, and that any exclusions or limitations of liability in those licences do not cover copyright infringement claims.