Battle between Eminem and National Party rages on in High Court

The battle over whether a rip-off of Eminem’s Lose Yourself was used for a National Party campaign ad restarted at the High Court at Wellington this morning with a medley of music examples, ranging from Justin Bieber and Skrillex, to Twinkle, Twinkle Little Star.  National Party lawyers called musicologist Dr Kirsten Zemke to give evidence in the trial this morning, where she had different tracks played to the court to demonstrate songs with similar features. The High Court Justice and lawyers spent the first 20 minutes listening to the beginnings of various songs.  Zemke, who is a lecturer in pop music at the University of Auckland, has compared songs such as Adam Lambert’s Ghost Town and Justin Bieber’s Where Are You Now.  Those present have also listened to parts of Jason Derulo’s Talk Dirty To Me, Summer Nights from Grease, Bruno Mars’ Locked Out Of Heaven, and have compared the identical melodies of Twinkle, Twinkle Little Star with the ABC song.

The trial, which started last week, is to determine whether the National Party infringed copyright with the use of the track Eminem-Esque in a 2014 general election campaign advertisement.  The track bears similarities to Eminem’s hit song Lose Yourself.  Eight Mile Style LLC and Martin Affiliated LLC, Detroit-based publishers of Eminem’s copyrights, initiated the proceedings in September 2014.  Last week, the Eminem-Esque track was labelled “a blatant rip-off” of Lose Yourself by music producer Jeff Bass, who composed the original guitar riff for Lose Yourself.

Zemke said there were various elements to a song which could not be considered “original”, but instead “musical building blocks” that nobody could take ownership of.  She said backing music on a track was not considered to be “owned” by any artist as it was “not the core part of a composition”.  “Lose Yourself as a song doesn’t even have a sub-melody, as it is a rap song,” she said.  Eminem-Esque was “a vague approximation” of Lose Yourself created by a music programmer with enough differences to not be a copy. Zemke has gone through a breakdown of the song Lose Yourself and how the melody is different to Eminem-Esque.  She said there were differences in the “timbre” of the songs, which is the colour or quality of a note.  Eminem-Esque does not have the distortion of accented strums in its notes that Lose Yourself does.  Zemke demonstrated the differences in notes by having Eminem-Esque played to the court, and humming along to it.  She said someone listening to both tracks more than once, with the similarities pointed out, would be able to hear the resemblance between each.  It seemed “intentional” to create the resemblance, “as if to present an echo of Lose Yourself“, but did not copy the melody or lyrics.  She said there was a similar vibe to the songs, “but vibe is not something that one can own”.  “The melodic aspects of Lose Yourself have not been reproduced.”  Zemke said Eminem-Esque did not copy the “essence” of Lose Yourself.  “There is no musical meaning for the term ‘essence’ … if there was something that could be called essence, it would be instead referring to the flow, lyrics, life, history, imagery, videos, engagements with the hip-hop community, and the fierceness, anger, vulnerability or timbre of Eminem.”  Eminem-Esque uses “inferior approximations” of the timbre of Lose Yourself, altered melodic aspects, and simplified structure, as well as a similar commonly-used beat and guitar pattern, Zemke said.  “Eminem, or Mr Mathers, himself was inspired extensively by other musicians.”  Zemke stressed it was common for artists to use aspects of other songs to build their own piece.

Lawyer for the plaintiff Eight Mile Style, Gary Williams, asked Zemke whether she had ever said in an interview that the use of Eminem-Esque was “ethically wrong”.  She said she had never said that.

Zemke’s position had always been that “to have ownership of these music elements would disrupt the music industry”, so she could not understand why she would say the Eminem-Esque piece was infringing copyright.  For example, advertisers might want the “feel” or “energy” of a particular song in the track.  “The sum of it is you want the similar feeling to this or that U2 song, but it doesn’t need to be U2, you just want some of the feeling of those guitar chords or strings.”

Williams questioned whether Zemke was saying that a song using numerous common musical elements could not be an “original” song.  “Nothing is original,” she told him.

Zemke cited the idea that minor chords inspire a sad or serious feeling, while repeated chords create energy in a piece. These ideas are reused throughout music and cannot be owned.  The elements used in Eminem-Esque were also taken from “hundreds” of other songs.  “Those aren’t elements which are original.”  Zemke told Williams that “going to this length” of legal proceedings over the musical elements argued over in the trial could set a precedent that would disrupt the music industry.  She discussed with the judge how the songs La Bamba and Twist and Shout had similar backing tracks but did not infringe copyright.  Zemke said she could sing La Bamba over the Twist and Shout backing track, and it would still sound “very good”.

The evidence for the defence is now finished.

Court is adjourned until Thursday for the lawyers to give their closing addresses.

 

Source nzherald.co.nz