'It's more than just the boom boom boom boom,' National Party's defence lawyer argues

Eminem wasn't original, so couldn't be copied, National Party's lawyer tells the High Court in Wellington. Photo / File

Whether the National Party was damaged by Eminem, or Eminem damaged by the National Party, has come up for debate in the High Court.

The High Court hearing is under way in Wellington, with closing arguments beginning today.

It's alleged the Party's use of the track Eminem-Esque in a 2014 general election campaign advertisement, infringed copyright of the track Lose Yourself.

Barrister Greg Arthur, representing the National Party, said it was "absurd" to think the National Party wanted to use Lose Yourself, in order to be associated with the rapper.

"Rightly or wrongly, he's been associated with hate speech, violence."

Justice Helen Cull then interrupted.

"It [the legal test] goes the other way. It goes the other way.

"The association is when the music artist doesn't want to be associated with the political party, that's the question."

Arthur then clarified he was only making the argument to show what National wanted was a soundtrack with a strong beat, rather than Eminem's track specifically.

Earlier in the day, Arthur argued the party couldn't have infringed copyright of Lose Yourself, as the song itself wasn't original.

He said copyright infringement was only possible if there was "substantial" similarity between the original work and alleged copy.

"Defendants accept that the combination of the timbre and rhythm meet the broad similarities, but it's a matter of details to get down to what makes Lose Yourself original.

"Eminem-Esque does not reproduce the substantial part of Lose Yourself, so there was no copyright infringement."

Arthur argued that the beat itself wasn't original, but only the combination of the song's beat and melody.

As the sound-alike track had only used a similar beat, he argued that was not a substantial similarity.

"The basic building blocks that go into making up the work are not in themselves original.

"If all that is used is those building blocks, there is nothing in them that is original, which means it cannot be an infringement."

Justice Cull questioned Arthur's argument.

"Isn't that what they wanted?

"They wanted the beat, the, dare I say it, the vibe.

"Do you accept the originality in that beat? The drive in it, that was described as 'hypnotic'?"

Arthur continued to argue his defence, that without the melody it was not copyright infringement.

"[The beat] might be what people remember about Lose Yourself.

"But it's those melodic lines that give it the distinctiveness.

"To get that rhythm, it could have been Lose Yourself, it could have been Total Control, it could have been Kashmir.

"There's nothing original about having a steady beat. It attracts originality when you add something to it, that melodic line."

"It's more than just the boom boom boom boom.

"It's the way it rises at the end. You take the melodic line away and you don't have anything building anywhere."

Arthur said that over the course of the hearings, there had been evidence that suggested the National Party was more concerned with who could be liable, rather than ensuring they didn't breach copyright.

But he said that was clearly not true, when you looked at their motivations.

"It was important to them that there was no risk, as any risk created the possibility for distraction during an election campaign.

"The assurances the National Party received was from members of the advertising and music licensing community.

"They trusted their team, and had no cause to think that using Eminem Esque was anything other than risk free."

Lawyers for the plaintiff Eight Mile Style will give their closing arguments tomorrow.