Comment by Charles Cronin

Following her exhaustive (and exhausting) comparison of every element of the two contested works, New Zealand High Court Judge Helen Cull concludes that Defendant’s work infringed the Plaintiff’s. Despite her admirable diligence, the conclusion is wrong. She raises a red flag when she states about Plaintiff’s work: “I am unable to accept the melody in this work is the dominant feature.” She goes on to discuss what she considers the originality of the integrated sound of the Plaintiff’s work resulting from a combination of unprotectable musical elements like timbre and “hypnotic rhythm.” But the fact that the two works may sound alike should have little bearing on the question of infringement of original musical expression where, as here, there is virtually none in either work.

Of course, the Defendant wanted its advertisement to evoke “Eminem”’s “Lose Yourself,” which was (amazingly…) enormously popular at the time. And Eminem may have had colorable claims against Defendant of false, or misleading, attribution. But Judge Cull found Defendant liable for music copyright infringement for having used a similar collocation of sounds. As in the correspondently regrettable Blurred Lines outcome that preceded this case, this decision allows a plaintiff to monopolize such an unprotectable collocation simply by establishing use of it prior to that of a defendant.

The High Court damages award of around U.S. $400,000 was subsequently reduced by the Court of Appeals to about U.S. $150,000. Plaintiff’s appeal of this reduction to the New Zealand Supreme Court was rejected in May 2019.

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High Court Opinion by Judge Cull: PDF

Supreme Court Judgement: PDF