National loses itself

Written By: - Date published: 3:46 pm, October 25th, 2017 - 86 comments
Categories: Deep stuff, Dirty Politics, national, same old national, spin, Steven Joyce, you couldn't make this shit up - Tags:

National’s week from hell just got worse.  The High Court has declared that it effectively ripped off Eminem’s song Lose yourself for its 2014 campaign ad.

From the start it seemed to me that National had overstepped the mark.  Here is something I wrote in 2014:

National may have struck a problem with their campaign video.  The soundtrack sounds suspiciously like Eminem’s song “Lose yourself” which was the lead song in the movie 8 Mile.

National has had this problem in the past.  In 2007 a DVD was created about John Key which had a song which sounded like Coldplay’s Clocks.  After a complaint the DVD was withdrawn.

Maybe National has learned and did get the Artist’s approval to use the song this time.  Even if it did you have to wonder at the choice of song.  You see it is all about a rapper who is ready to publicly perform and who chokes, a bit like National seems to be doing now.

Here are some of the lyrics:

His palms are sweaty, knees weak, arms are heavy
There’s vomit on his sweater already, mom’s spaghetti
He’s nervous, but on the surface he looks calm and ready to drop bombs,
But he keeps on forgetting what he wrote down,
The whole crowd goes so loud
He opens his mouth, but the words won’t come out
He’s choking how, everybody’s joking now
The clock’s run out, time’s up, over, bloah!

Perhaps this is how John Key feels every time that Dirty Politics is raised …

The High Court has confirmed that use of the tune was indeed to use that non legal term, a rip off.  What I would like to know is what effect this will have on National’s 2014 return of electoral expenses.  There could be some interesting legal issues arising from this.

And over to twitter which was at its best today …

https://twitter.com/GCSBIntercepts/status/923013410354225152

https://twitter.com/GCSBIntercepts/status/923009112534683649

Update: There is an interesting legal issue. National was $177k under the spending cap in 2014. Paying the judgment would presumably put it over because advertising expenses include “the cost incurred in the preparation, design, composition, printing, postage, and publication of the advertisement”. National’s cap is set by section 203C of the Electoral Act 1993. Under section 203D it is a corrupt practice to knowingly pay amounts in excess of breach the cap and this applies to “any person who directly or indirectly pays or knowingly aids or abets any person in paying for or on account of any election expenses any sum in excess of either of the maximum amounts prescribed by section 206C”. Good luck to National sorting that out.

86 comments on “National loses itself”

  1. tracey 1

    Second time. Another wet bus ticket.

  2. Cinny 2

    “National loses itself” ROFL !!!

  3. nzsage 3

    Come on let’s have some maturity here… gloating over this ruling will only appear childish and will lack any level of decorum……….

    Oh what the hell….. WAAAAAAAAAHOOOO!!!! 600,000 smackaroonies is one hell of a pricey jukebox! Couldn’t have happened to a nicer bunch of losers

    Ok…normal service resumed.

    • North 3.1

      NZSage……..beautiful! Will we see Michelle Boag retire from public life for the deep grief of it all?

  4. McFlock 4

    So what’s the deal with electoral spending?

    My oft-dubious math suggests that their 2014 election victory, tenuous as it was, owes at least some credit to exceeding the spending cap by about $400,000 plus their legal fees. Bastards will probably get away with it, too. Should be jailed.

  5. Robert Guyton 5

    “Update: There are a couple of thorny issues posed if Eminem wins. Firstly the judgment would presumably be an election expense and have to be added to National’s return of expenses. It must hope that it is not too close to the maximum.

    Secondly if it loses it would have spent more than was allocated for the purpose of the advertisement by the Electoral Commission. As Mike Smith points out this may be significant. National has had problems in the past when it previously overspent its allocation.”

    Eminem sues National

    • mickysavage 5.1

      Yep I thought I would do a bit of reading tonite to see what I could find but I do think the lawyers are going to have a field day.

  6. Ad 6

    Labour government sworn in.

    Joyce humiliated losing a campaign and a legal case.

    I think this calls for a drink 🙂

  7. tracey 7

    Will Nats appeal? Why wasnt the company that sold them the licence joined in a cross claim by Nats?

  8. Matthew Whitehead 8

    In terms of election expenses, even if this settlement counted, Graeme Edgler on twitter points out that it would be beyond the statute of limitations for the Electoral Commission to refer them to Police for prosecution on 2014 spending, so the implications are likely to be entirely in terms of political image and financial drain.

    Despite Joyce’s grandiose claims on RNZ this morning, it is unlikely to change the way copyright law is applied. It was always illegal to attempt to breach copyright by proxy, and it was always going to be the National Party held responsible for their actions, especially given email chains revealed they were specifically trying to avoid asking for a license, ie. attempting to circumvent the law.

    For a party that makes a big deal about intellectual property for large corporations, this is ridiculously ironic, but also revealing of how little National knows about or cares about intellectual property- no wonder they backed the TPP so aggressively, they obviously don’t understand what it will cost New Zealand’s creative and intellectual industries.

    • McFlock 8.1

      So as long as their donors pick up the tab, the nats walk away scot-free. 🙄

      • Matthew Whitehead 8.1.1

        It’s worse than that. The National Party has more money than it can legally spend on campaign expenses, so this judgement is probably not even large enough to serve as a meaningful financial disincentive by disadvantaging them in their 2020 campaign, as large as it seems in general.

      • …the National Party held responsible for their actions, especially given email chains revealed they were specifically trying to avoid asking for a license, ie. attempting to circumvent the law.

        My bold.

        Wonder what other laws they always try to circumvent. You can guarantee that it’s many.

    • ianmac 8.2

      Of course Joyce was thinking he was still all powerful and could retrospectively change the law and have a clause that anyone who dared to sue National would be fined and/or imprisoned.

      • Matthew Whitehead 8.2.1

        Joyce seems to think that when an artist creates a sound-alike track, only they are responsible for copyright infringement, when in fact any new derivative work (such as pairing that track to video) is also guilty on being published. (you can still create an infringing work so long as you never make it publicly available, but that would defeat the point of evading the licensing process for their political ad!) National foolishly thought that even if there was a copyright claim, it would be able to wash its hands and say they weren’t the original infringer and 8 Mile Style would need to sue the track’s creator, which is of course absolutely rubbish.

        Makes you wonder if they even bothered to ask Finlayson about the whole affair, because I’d be shocked if he wouldn’t have set them straight.

    • mickysavage 8.3

      It gets sticky though. They have to pay up but it is illegal to pay the bill late. They will need permission. And there is this …

      206C Maximum amount of party’s total election expenses
      (1) If a party is listed in the part of the ballot paper that relates to the party vote, the total election expenses of that party in respect of any regulated period must not exceed—
      (a) $1,139,000 (or such other amount as is prescribed by the Governor-General by Order in Council under section 266A); and
      (b) $26,800 (or such other amount as is prescribed by the Governor-General by Order in Council under section 266A) for each electoral district contested by a candidate for the party.

      And …

      206D Offence to pay election expenses in excess of prescribed maximum
      (1) This section applies to any person who directly or indirectly pays or knowingly aids or abets any person in paying for or on account of any election expenses any sum in excess of either of the maximum amounts prescribed by section 206C.
      (2) The person is guilty of—
      (a) a corrupt practice if he or she knew the payment was in excess of the prescribed maximum amount; or
      (b) an illegal practice in any other case, unless he or she proves that he or she took all reasonable steps to ensure that the election expenses did not exceed the prescribed maximum amount.
      (3) Every person who enters into an agreement or enters into an arrangement or understanding with any other person for the purpose of circumventing either of the maximum amounts prescribed in section 206C is guilty of a corrupt practice.

      National may have problems …

      • McFlock 8.3.1

        here’s hoping.

      • Matthew Whitehead 8.3.2

        I would be shocked if they were on the hook for either of those offenses. 206C is likely to be too late to prosecute even if the judgement counts as an election expense, and 206D is out because there is no way to prove that they knew that they would have to pay this court judgement. (in fact there’s a lot of evidence they thought they were off the hook for legal liability, even though they were wrong)

        And then there’s a reasonable argument that court costs are not election expenses as well, so I’d be very surprised if they are in further hot water than the civil case.

        The real fallout is likely to be creative industries such as the IT sector abandoning National as it’s clear they do not understand or respect intellectual property.

        • tracey 8.3.2.1

          I agree. This wont affect Nats or their supporters. Blame will go on media company and in some respects that is fair enough. I wouldnt expect Joyce to recognise similarity to Eminem.

          • Matthew Whitehead 8.3.2.1.1

            Actually there are emails confirming the National Party deliberately picked the track because of its similarity to Eminem’s famous hiphop song, and used Lose Yourself during the first draft of the ad and only sought the sound-alike track on learning that they were unlikely to be granted a license to the real track, so I wouldn’t excuse them there.

            Blame belongs to the National Party, who have been legislating in this area and don’t even understand the impacts of our current law. You could ask any intellectual property intern and they would have told you these actions were a very, VERY bad idea, even if they weren’t sure that they would lose the court case, and the people they claimed to have asked- the entertainment industry- would have told them the same thing if they actually had any awareness of intellectual property law.

            I know this stuff because you have to be very clear about whether your work is original as an author.

        • mickysavage 8.3.2.2

          But the cap is breached when the payment is made. Currently the party has not broken the cap. But as soon as the settlement check is signed …

          • Matthew Whitehead 8.3.2.2.1

            *shrug* Edgeler thinks given it would be related to the 2014 campaign, the timing for the offense is actually related to the end of that campaign, not the current over-payment, if the settlement even counts as a campaign expense, which I would also find iffy. That’s not even marginally my area of expertise, so I would defer to him as to the period allowable for prosecution, but if you know more feel free to enlighten us.

          • tracey 8.3.2.2.2

            They didnt knowingly exceed though Mickey… having to have something decided by a court suggests that they didnt exceed with any intent?

            • mickysavage 8.3.2.2.2.1

              This is where it gets interesting. The section applies to someone who “directly or indirectly pays or knowingly aids or abets any person in paying for or on account of any election expenses any sum in excess of either of the maximum amounts“. It seems that it is not the running up of expenses that is the problem, it is the writing of the cheque.

              • Tracey

                Hmmmmmm.

                Another irony is Key authorised some arguably illegal activity to bring copyright breacher kim dotcom before the courts… such was his and Nats distaste for copyright infringement.

              • gsays

                This conversation reminds me of David lange’s advice on lawyers-to not trust them, half of them are always wrong.

              • lurgee

                I reckon the judge is going down for this. Knowingly aiding National in breaching the election cap!

                Your argument is entertaining, but … rather tenuous.

            • Draco T Bastard 8.3.2.2.2.2

              having to have something decided by a court suggests that they didnt exceed with any intent?

              If, as Michael says, there’s an email track showing intent to bypass the law about getting a licence then it can be assumed that they did so because getting a licence would have put them above the cap.

              If so then intent is proved on two crimes – breaking copyright law and breaking election spending law.

              • Matthew Whitehead

                They wouldn’t have gotten a license. Lose Yourself is almost never licensed for anything, let alone political ads.

        • Draco T Bastard 8.3.2.3

          206C is likely to be too late to prosecute even if the judgement counts as an election expense

          Wouldn’t the timing be when Eminem laid the complaint? I.e, if Eminem brought the lawsuit before the cut off time then the time is extended to when the court case comes to an end?

          (in fact there’s a lot of evidence they thought they were off the hook for legal liability, even though they were wrong)

          But they do seem to have conspired to break the law and the only reason why they would do that is because they knew the law and how it worked.

      • Patricia Bremner 8.3.3

        8.3 thank you Micky. It gets better and better. They liked throwing mud, great to see it stick to them.

  9. Patricia Bremner 9

    4.1 McFlock Yes Probably a calculated “Pretty legal” effort which paid off for them. Their backers will pick up the tab.

  10. OnceWasTim 10

    legal schhhhmegal. Law doesn’t apply to masters of the universe – they’re not only legends in their own minds, but they ARE the law apparently.

  11. ankerawshark 11

    Its not all about the money though……………I am enjoying the humiliation for the Nats and Steven Joyce in particular………………….

    And the loss of credibility………………11.7 billion dollar holes, Pretty legal I feel a Tui billboard coming on.

    I am am happy to look like a lesser person for enjoying all of this…………..ha, ha ha ha ha ha……….etc, etc, etc

  12. AB 12

    So if their use of the Eminem song was “pretty legal”, then their election performance must be “pretty victorious”?

    • tracey 12.1

      Like Bennett was pretty honest when on a benefit

      • rhinocrates 12.1.1

        I’m really looking forward to seeing the vultures fighting over Blinglish’s carcass. Bennett, Tolley, Prostetnic Vogon Joyce, Collins (oh ha ha! – really, I wouldn’t worry, all of her colleagues hate her), Bridges…

  13. Richard 13

    My brother wants to know when the FBI will be initiating extradition proceedings…

  14. rhinocrates 14

    The nats trying to appeal to youth is comical enough. Actually it’s hilarious. Sure there are some chinless brats practicing their comb-overs and drooling over their invitations to the Princess Parties who think that it was really groovy, as the hip youngster folks say… but, oh, the schadenfreude…

    Oh, and personal responsibility? And copyright? And property rights?

    Come on Wayne, please! Tell us how reasonable, sensible and balanced and pragmatic you’ve been!

    • OncewasTim 14.1

      Yep. I’ve been waiting for Jeeze Wayne to emerge too.

      • rhinocrates 14.1.1

        You don’t get paid for humility, you get paid for being a theatrical idiot that people can pretend is sensible. He’s angling for a lucrative “commentator” gig and that needs a firmly-established brand. The brand in this case is “never admitting to being wrong”.

  15. beatie 15

    Breach of Copyright. Isn’t that what they accused Kim Dotcom of?

  16. One Anonymous Bloke 16

    Making a “mistake” at work, costing the firm $600k.

    On the very same day, doubling down on your personal reputation for lying, by telling a lie that contradicts one of your previous lies.

    Personal responsibility means Steven Joyce will attack anyone who questions his fitness for office.

  17. tc 17

    Is this a normal length of time for such matters ? It’s taken years.

    • mickysavage 17.1

      It has taken longer than I thought it would. The essential facts are not really in dispute although the discovery came up with some interesting background.

      I suspect that National tried to burn Eminem off but he would have just kept laughing and signing cheques for his legal team …

  18. mac1 18

    Now let’s get this right.

    The Right, by copying wrong, breach copyright, thus getting it wrong, right?

    In this, and its allied case involving Coldplay, it seems two wrongs do make a right dork of the Right.

    And now they’re $600,000 less on the right side of the ledger.

    Right on, I’d say.

  19. Stuart Munro 19

    There’s vomit on his sweater already, Bill’s spaghetti pizza.

  20. Ed 20

    How I’m feeling about all this news…..

    Walking on sunshine.

  21. mosa 21

    National should lose themselves permanently.

    I wish justice could be served in all of their other misdemeanors starting with that shyster Key.

    Sam Mc Cready are you out there !!!!!

  22. Sabine 22

    600.000 $ plus interest.

    t’is is pretty funny, innit?

  23. corodale 23

    rich gnats high up, paying top$ for term in opposition

  24. Terry 24

    The Nats must have got carried away with Bill English’s “Rock Star Economy” and thought they were Led Zeppelin, pity they didn’t have Page & plant’s legal team…

  25. ankerawshark 25

    I am also thinking of that clever clip which unfortunately I can’t copy of a real running race with the blue runner looking like they were about to win, only to have the runner in black and red (prophetic much?) take over…………………..

  26. gsays 26

    Contrast this with the electoral commission’s response to darren watson last election.

    Perhaps the new lefty acumen cleaner could do with giving the aforementioned institution a once over.

  27. ropata 27

    Somewhat bitter tweet from Kim Dotcom on the matter

    The @NZNationalParty was found guilty of copyright infringement today. The same people who did the military style copyright raid on my home.— Kim Dotcom (@KimDotcom) October 25, 2017

  28. cleangreen 28

    I heard on Radiolive with Ali today;

    That the national Party ‘faithful’ supporters are pissed off having to pony up to pay for Joyces next bid fuckup here already and now that national are going back to court to sue the giver of the 2000 dollar copy of MSM to Joyce they did say it was o/k to use it?????

    Iwould demand Joyce pay the million dollar fine instead!! It’s his fuckup as he was National party Election strategy manager.

    Someting smells fishy in denmark.

  29. One Anonymous Bloke 29

    As Minister of Justice-designate I want to state from that outset that “pretty legal” is no longer the standard this country operates to!

    Andrew Little.

  30. Acting Up 30

    If I was a rich backer who has been attending “Cabinet Club” to buy myself some access to ministers, I would be feeling pretty pissed off about now that a) my money is heading to Eminem instead, and b) I have only managed to purchase myself access to some opposition MPs who will be fully engaged in backstabbing and self-interested career jockeying for the next year or so.

    I might even withdraw my largesse!

  31. james 31

    Well – that bit them in the arse, and deservedly so.

    Although I find the update in the post the most interesting – will be curious to see how that is handled. A doomed if you do, doomed if you dont type conundrum.

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