In September 2014, Eight-Mile Style, the publisher of Eminem's “lose yourself” song filed legal proceedings against New Zealand’s National party, claiming copyright infringement of Eminem’s Grammy and Academy award-winning song “lose yourself”.

The New Zealand National Party used the introduction of Eminem’s “lose yourself” song (most of us will know that familiar urgent, pulsing beat) in its electoral campaign during 2014. The National party claimed that they purchased the track, called Eminem-Esque (hint hint), from a stock music library.

The matter was heard in the New Zealand High Court recently and judgment is yet to be handed down. Eight-Mile Style is suing for an undisclosed amount in damages for copyright infringement and has also requested an acknowledgement by the Court that the National party has infringed copyright.

It would be interesting to consider what the outcome would be if this dispute were brought before the South African courts. In terms of the Copyright Act No. 98 of 1978 (“the Act”), a “musical work” means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.

In terms of Section 6 of the Act, copyright in a musical work vests the exclusive right to do or to authorise, inter alia, of any of the following acts in the Republic: the reproduction of the work in any manner or form; the performance of the work in public and the making of an adaptation of the work.

In order to establish copyright infringement, Eight-Mile Style would have to prove that the National Party’s backing track constitutes a reproduction or adaptation of a substantial part of the musical work complained of.

Although section 12 of the Act provides for certain exceptions to copyright infringement in literary and musical works, this matter does not seem to fall under any of the current exceptions provided by the section.

In the circumstances, it seems that the only real argument open to the National Party would be to show that the portion of the music used was not substantial, i.e. it was not an important part of the music – this is a qualitative and not quantitative assessment.

Without having had sight of the full arguments put forward by both parties and without intending to predict what a South African court’s finding would be, I am inclined to say that although the familiar pulsing beat of “lose yourself” is only in the beginning of the song and it is a short beat in comparison to the song in its entirety, this is how listeners of the song actually identify “lose yourself”. Without this beat, the song would almost be unrecognisable. As we all know, music is often identified in the beginning. This makes sense as, for instance, it is the introduction of a book, movie, song or any kind of entertainment, in fact, that will capture the audience.

It is also worth noting that the South African government recently published some proposed amendments to the existing copyright legislation, which is intended to overhaul the somewhat outdated current laws. In terms of the Copyright Amendment Bill of 2017, Section 12 of the current Act is amended by the inclusion of the following exception: that fair use in respect of a work or performance of a work, for the purposes of comment, illustration, parody, satire, caricature or pastiche does not infringe copyright in that work. 

The Bill provides that the following factors must be taken into account when determining what is fair use or fair dealing (these terms are used interchangeably): the nature of the work in question; the amount and substantiality of the part of the work affected by the act in relation to the whole of the work; the purpose and character of the use, including whether such use serves a purpose different from that of the work affected and it is of a commercial nature or for non-profit research, library or educational purposes; and the substitution effect of the act upon the potential market for the work in question.

This exception mirrors the European Copyright Directive, although, the European Copyright Directive (like the Copyright Amendment Bill) provides no specific definition of the terms “parody”, “caricature” and/or “pastiche”, which leaves it to the courts to interpret the terms. The UK Intellectual Property Office (IPO) Guidelines, however, do set out explanatory notes for each term and in this regard the meaning of pastiche is provided as being “musical or other compositions made up of selections from various sources or one which imitates the style of another artist or period”.

Although the IPO Guidelines do not have any formal legal application in South Africa, it is possible that, if the Copyright Amendment Bill is finally enacted in South Africa, regard would be had to the IPO Guidelines in interpreting the meaning of the word “pastiche”.

If a similar situation were dealt with in South Africa (after the enactment of the Copyright Amendment Bill) it is arguable that the alleged infringing party may have scope to contend that the “pastiche exception” is applicable, however they would also have to show that such use amounted to fair use or fair dealing.

There have been several other cases internationally, that involve political parties making use of certain musical works, such as when Both Cyndi Lauper and Sam Moore of Sam & Dave asked the Democrats and the Obama campaign to stop using their songs. It seems that the union of music and political parties have a long history.

It would be interesting to know what would have happened in a South African context, had the song “umshini wami” been subject to copyright protection.

After all is said and done, obtain permission from the copyright owner.  And in the meantime, it will be interesting to hear the outcome of the rapper’s case.

Written by Zama Buthelezi, Associate and Trade Mark Attorney at KISCH IP