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Judge Gives OK For Eminem vs. Apple To Continue
by , 8:00 AM EDT, May 18th, 2004
Eminem and Apple Computer are officially still on a collision course. The AP is reporting today that a judge has given the go ahead to Eminem's lawsuit against Apple, TBWA/Chiat/Day, MTV, and Viacom, MTV's parent company, to proceed. US District Judge Anna Diggs Taylor threw two claims based on state law, one for unfair competition, and one for unjust enrichment, but allowed the rest of the suit to continue.
Initiated in February of this year, the lawsuit accuses Apple and Apple's ad agency, TBWA/Chiat/Day, of copyright infringement in an iPod commercial in which a 10-year old child raps the lyrics to "Lose Yourself," an Eminem song. In addition to its debut at Macworld San Francisco, the commercial was aired on MTV, thus involving MTV and Viacom.
As TMO reported in our original report, initial discussions focused on the use of the song and compensation for Eminem, according to court documents. "He had never endorsed a product," Howard Hertz, Eminem's lawyer, said. "They felt that using 'Lose Yourself' was in effect an endorsement of the product and it would be much more valuable than what they were talking about paying."
The complaint states Eminem was looking to be paid "possibly in excess of (US)$10 Million."
When talks broke down, a representative of Chiat/Day proposed the use of another Eminem song, "The Real Slim Shady," in the advertisement, according to the complaint. Eminem agreed to review the newly-proposed commercial and if the commercial was ultimately approved, Apple would pay Eminem US$300,000 to use the song.
Before the spot was even produced, Apple CEO Steve Jobs phoned Eminem's publisher, Joel Martin, stating that "Apple was too far into its original (ad) campaign to make any changes," the complaint stated. Jobs requested Eminem "rethink" his position and permit Apple to use 'Lose Yourself' in the TV spot, "or Apple would 'scrap' the entire ad campaign." Eminem and his publisher ended all discussions on an agreement after the Jobs call, Mr. Hertz said.
The complaint alleged that "at no time did Apple, Chiat/Day or MTV receive authorization or permission to record, reproduce, perform, transmit, copy, use or otherwise exploit the Composition for any purpose."
To prove its point, the complaint included a copy of an e-mail letter from Andrew Schafer, an employee of Chiat/Day, confirming to Mr. Martin his understanding that the rapper was not granting use of the song, 'Lose Yourself'.
"So to confirm, you guys are a definite "no" for the campaign as it is (The young boy rapping "Lose Yourself")," the letter stated.
Today's ruling from the judge was the first legal hurdle for Eminem to cross, setting the stage for discovery for both parties. From the AP report:
Eminem lawyer Howard Hertz said he was pleased that [Judge] Taylor allowed the case to go forward, even though she dismissed part of the case.
"We will be able to get the documentation and depositions to find out what happened and assess damages," Hertz said.
There's more information in today's AP report, as well as in our original reporting from February.
Observer Comments
Tue May 18, 2004 8:19 am Subject: Steve Jobs Arrogance To Cost Apple Shareholders Again
Tue May 18, 2004 9:52 am Subject: Hey, if Apple thinks it's reasonable to patent transparency
...then it's tough for me to be sympathetic when lil white rappers want to sue because they used their song without permission. What's weird is that I can understand the disagreement on compensation. But when you're a company championing the free market system over music piracy, how do you make an error on a song where there's a dispute over payment already? The fact that there was any question seems like it would have inspired more caution to avoid an unauthorized use.
The only people who will emerge winners are the lawyers. Eminem steals a candy's good name, then complains that a ten-year-old kid's bad imitation might be misconstrued as an endorsment? Sure somebody screwed up at Apple, but $10 million? No way... Apple will reach a settlement with them for much less.
Em's lawyers have to prove more than ill intent. Apple will counter that the ad was free publicity for his song and actually AIDED his career. Em's career was already damaged... can you say "duet with Elton John?"
As an earlier poster said, MANY music videos have featured iPods, and I don't see Apple getting upset and slamming lawsuits right and left.
Instead, let's get all iPod users to sue Eminem for being embarrassing and offensive to both black and white people with his stupid "poor me, I'm so oppressed" songs. Maybe that's why Apple could only get a ten-tear-old to appear in the video...it was too uncool for anyone older to still listen to this flash-in-the-pan corporate poser's music.
One more thing: did Em's record company refuse all profits from the uptick in sales of his music at the iTunes Music Store after the commercial aired? Yup, they were REALLY damaged by THAT sudden influx of cash, weren't they?!
(Case closed.)
-Ken P
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