Inside details on the Eminem versus Apple lawsuit
February 25, 2004 - 12:58 PST   By Larry Angell - As reported yesterday, Eight Mile Style, Eminem's music publisher, is suing Apple claiming that the company used one of the rapper's songs—"Lose Yourself" from the 2002 film "8 Mile"—in an iTunes television commercial without permission. MacMinute has obtained the 15-page lawsuit, which was filed on Feb. 20 in U.S. District Court in Detroit, Michigan. The suit—which also names Viacom, its MTV subsidiary and the TBWA/Chiat/Day advertising agency—said "Eminem has never nationally endorsed any commercial products and... even if he were interested in endorsing a product any endorsement deal would require a significant amount of money, possibly in excess of $10 million." [Discuss]

In the complaint, Eight Mile Style said Apple and Chiat/Day approached the company in early 2003 for authorization to use "Lose Yourself" in its television commercial campaign, "thereby impliedly having Eminem endorse the iPod and iTunes products of Apple."

The music publisher said Chiat/Day—who also created Apple's legendary "1984" and "Think different" ads—prepared the commercial and posted it on Apple's Web site without plaintiffs' approval or knowledge. Eight Mile Style said they discovered the ad, and subsequently showed it to Eminem (whose real name is Marshall Mathers III) who "disapproved of the use of the composition in that manner."

The publisher said it then notified Apple to have the ad removed and indicated that they would not permit the composition to be used in the commercial. "Despite having permission to proceed," the complaint reads, "it has come to the attention of the plaintiffs that, in addition to other copyright violations, a commercial for iTunes containing a performance of 'Lose Yourself' was publicly performed on MTV Networks, and perhaps other broadcast and/or cable cast outlets... as early as July 2003, and as late as October 2003." (Interestingly, the song—written by Eminem and two others in October 2002—wasn't copyrighted until Oct. 27, 2003, according to a document (below) filed with the U.S. Copyright Office.)

"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," the complaint said. As evidence, the complaint cited an e-mail (below) dated May 7, 2003, in which Andrew Schafer, an employee of Chiat/Day, acknowledged to Joel Martin, manager of Eight Mile Style, that he understood the plaintiffs had refused to license the song. "So to confirm, you guys are a definite 'no' for the campaign as it is (The young boy rapping 'Lose Yourself')," Schafer allegedly stated in the e-mail.

The lawsuit also said that after learning Eminem was against the use of "Lose Yourself," Chiat/Day raised the possibility of using another Eminem song, "The Real Slim Shady," in a similar ad. Eight Mile Style said its representatives agreed to review such a commercial and, if the commercial was approved, the company would consider allowing the use of "The Real Slim Shady" for $300,000. Chiat/Day then prepared a second commercial using the new song.

However, before the plaintiffs were given the opportunity to review the second commercial, the suit claims, Apple CEO Steve Jobs called Martin and said that Apple was "too far into its original campaign to make any changes." Jobs asked Martin and Eminem to "rethink" their position and allow Apple to use "Lose Yourself" in the TV ad or Apple would "scrap" the entire campaign.

After Eight Mile Style relayed Jobs' position to Eminem, the hardcore rapper known for his shocking lyrics, instructed the company to "end all discussions regarding the use of any of his compositions in Apple's ad campaigns," the suit states.

The copyright infringement suit claims that these actions "have served to usurp the plaintiffs' exclusive right to determine whether, when, and under what terms the composition would be used for commercial endorsements and advertising." Eight Mile Style also said the actions by Apple and the others "have materially diminished the future value of the composition should they wish to make it available for future commercial advertising opportunities."

The suit said that Eminem and his music publisher are entitled to recover "the damages, including attorneys' fees, sustained and which will be sustained, and any gains, profits and advantages obtained by defendants as a result of defendants' acts of infringement." The amount of such damages, gains, profits and advantages "cannot be fully ascertained by plaintiffs, but are reasonably believed to exceed $75,000."

Representatives from Apple had no comment, while those at Chiat/Day and MTV were unavailable.

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