Beat goes on in Eminem copyright court hearing

"I'm not shy of loud music.'' Justice Helen Cull

The judge hearing the copyright case involving the National Party and the Eminem song Lose Yourself will be getting chapter and verse before the curtain falls later this week.

Musical interludes are planned for the lawyers’ closing submissions to Justice Helen Cull in the High Court at Wellington.

The judge has shown familiarity with music in the hearing so far, and not just the technical elements.

‘‘That doesn’t sound like the Twist and Shout I know,’’ she said when a recording example miscued.

And she has told the lawyers not to short-change her on the volume knob for the recordings they want to play as examples in their submissions.

‘‘I’m not shy of loud music … Don’t hesitate to turn it up,’’ she invited.

The evidence ended on Monday, but lawyers will reprise some of it when it’s their turn to talk to the judge, starting on Thursday.

The final witness in the case, which began last week, was ethnomusicologist Kirsten Zemke, who said she had compared Eminem’s Lose Yourself with the track Eminem Esque used in a National Party election campaign advert in 2014.

The holders of the copyright for Eminem’s Oscar and Grammy award-winning song claim the copyright was breached by the National Party’s use of Eminem Esque. Zemke told the court Eminem Esque was only a vague approximation of Lose Yourself.

Elements of Eminem Esque had been deliberately altered so that it did not substantially reproduce Lose Yourself, she said.

There were only a certain number of elements that made up a song and some of them, such as tempo, could not be owned.

One of the comparisons she gave was Twinkle Twinkle Little Star and the ABC song, in which she said the backing music was different but the melody was the same.

She gave numerous examples of songs, snippets of which were played in court, that had similar elements, such as The Motels’ Total Control, Led Zeppelin’s Kashmir, and Lose Yourself.

Some elements were so common and ubiquitous that they were not considered owned.

Comparing Lose Yourself and Eminem Esque, Zemke said the melody of Lose Yourself had not been duplicated, and the other elements were ‘‘fair game’’. The shared use of features was how the music world operated.

The Rite of Spring, by Igor Stravinsky, was quite revolutionary when it came out in 1913, and the accents of the guitar part in Lose Yourself went back as far as Stravinsky.

Eminem’s work had built on other sources, just as all music did, she said.

Musical folk wanted to know where the line was where ‘‘you got into trouble’’, she said.

The line needed to be made in such a way that many hundreds of working musicians knew where it was.

Eminem, Jeff Bass and Luis Resto wrote Lose Yourself.

The Eminem Esque track was written by Michael Cohen, and the National Party said it bought the licence to use it. When the copyright infringement complaint was made in August 2014, the party’s adverts were quickly remade using different music.