In the lead up to New Zealand’s 2014 election, the National Party played a 30 second campaign advertisement which incorporated a sound track called ‘Eminem Esque’.
Eight Mile Style (publisher of US rapper Eminem) sued the National Party in the High Court in Wellington claiming that the National Party, its advertising agency and others involved in creating and licensing the track had infringed copyright by using an instrumental version of Eminem’s hit song ‘Lose Yourself’ in television advertisements without their consent.
On 25 October 2017 the High Court held that copyright had been infringed and ordered the defendants to pay $600,000 plus interest.
The National Party appealed to the Court of Appeal of New Zealand on grounds that the copyright was not infringed, and if it was, the damages should have been lower.
The appeal was allowed and the award of damages was reduced from $600,000 to $225,000.
The Court of Appeal agreed that the correct principle to apply was the user principle which involves determining the licence fee for the infringing work that would have been agreed in a hypothetical negotiation between a licensor and a licensee. The user principle was stated to be compensatory not restitutionary (also noted in Australia – Winnebago Industries Inc v Knott Investments Pty Ltd (No 4)  FCA 1327 per Yates J). The judge accepted the evidence of Eight Mile’s expert as to a minimum baseline fee and then an uplift was applied to reflect that the use was for political advertising, the significant risk to the future commercial value of the song and the lack of creative control and opportunity to re-record. The appropriate licence fee was calculated to have been $225,000.
For a humorous take on it, check out John Oliver’s take on the original case:
- New Zealand National Party v Eight Mile Style, LLC  NZCA 596 (18 December 2018) (CA663/2017)
- Copyright Act 1994