TMO Reports - Eminem Lawyers To Apple: "This Was Deliberate Copyright Infringement"

by , 5:45 PM EST, February 24th, 2004

Lawyers representing rap superstar Eminem and the publisher of his music have accused Apple Computer of knowingly using one of his songs in a 2003 iTunes television commercial, even after the company and its advertising agency confirmed it did not have permission to do so. As a result, Apple is being sued along with three others companies in U.S. District Court in Detroit, Mich., for copyright infringement.

"The bottom line is they (Apple) were told no and they used (the song) anyway," Howard Hertz, legal counsel for Eminem and his music publishing firm, Eight Mile Style, told The Mac Observer, Tuesday. "My client believes this was deliberate copyright infringement, pure and simple."

The court complaint, filed February 20 and obtained by The Mac Observer, named Apple, advertising agency TBWA/Chiat/Day, MTV and its parent company, Viacom International, Inc. as defendants in the suit. The plaintiffs are looking for monetary damages in excess of US$10 million, Mr. Hertz said.

The complaint alleged Apple and its ad agency approached Eminem in "early 2003" wanting his approval to use his number one hit 'Lose Yourself' in a TV spot featuring a 10-year-old boy singing the song while listening to a iPod portable music player. The suit claimed the commercial began airing in July 2003 on MTV, running for at least three months, and also appeared on Apple's Web site. The commercial has since been removed from www.apple.com.

Initial discussions focused on the use of the song and compensation for Eminem, according to court documents. "He had never endorsed a product," Mr. Hertz 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.

"They negotiated in bad faith," Mr. Hertz said. "It remains to be seen if they deliberately used the material knowing they had no right to."

A spokeswoman for Viacom, Apple and Chiat/Day declined to comment on the lawsuit.

Eminem, whose real name is Marshall Mathers III, is 31 and a Detroit-area native.