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The New Zealand National Party v Eight Mile Style, LLC [2018] NZCA 596

18 December 2018


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Media release

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Copyright – infringement – damages.  
Appeal allowed.  Damages award of $600,000 quashed and substituted with award of $225,000.  Cross-appeal dismissed.  
In 2014 the National Party broadcast a 30 second advertisement which incorporated a sound track called Eminem Esque. The High Court found Eminem Esque infringed copyright in the musical work Lose Yourself and awarded damages of $600,000.  The National Party appealed the level of the award, and the first and second respondents (“Eight Mile”) cross-appealed the finding that additional damages were not justified.    
Held; given expert witnesses’ evidence, it was not open to the High Court to adopt the baseline figure suggested by Ms Zamoyska, Eight Mile’s expert witness; minimum baseline concept negated proper consideration of a territory-related licence.  Reasonable to expect a higher fee would be payable for political use of the work, reflecting licensor’s objective concerns about nature of use per se; however a licensor’s subjective reluctance to agree to a licence because the licensor does not personally endorse the message of the advertisement does not justify an increased fee; High Court’s intention that licence fee should not reflect subjective reluctance thwarted by adoption of Ms Zamoyska’s analysis, which made no distinction between objective and subjective reluctance.  Award also inflated by taking into account perceived subjective willingness of National Party in determining starting point for fee; similarly award inflated by assumed omission of quality control provision in hypothetical licence and absence of consideration of non-infringing alternative options of the National Party.  Evidence on both sides of the case, once appropriate adjustments made to reflect Court’s view of above factors, supported a finding of a reasonable licence fee for Lose Yourself of $225,000.  Appeal allowed.    

Reasoning and conclusion of the High Court that additional damages were unjustified was sound.  Cross-appeal dismissed.