Judge Gives OK For Eminem vs. Apple To Continue

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 Eminemis lawsuit against Apple, TBWA/Chiat/Day, MTV, and Viacom, MTVis 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 Appleis 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, Eminemis lawyer, said. "They felt that using iLose Yourselfi 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 Eminemis 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 iLose Yourselfi in the TV spot, "or Apple would iscrapi 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, iLose Yourselfi.

"So to confirm, you guys are a definite "no" for the campaign as it is (The young boy rapping "Lose Yourself")," the letter stated.

Todayis 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.

Thereis more information in todayis AP report, as well as in our original reporting from February.

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