Eminem Sues Apple for Sampling his Samples

EvanKai writes "To celebrate Grey Tuesday, Eminem sues Apple to show his support for hiphop and sampling. CBS MarketWatch is reporting that 'Rapper Eminem's music publisher is suing Apple Computer Inc., claiming the company used one of the hip-hop superstar's songs in a television advertisement without permission. Eight Mile Style filed the copyright infringement suit late last week against Apple, Viacom Inc., its MTV subsidiary and the TBWA/Chiat/Day advertising agency.' While the ad in question no longer appears, several similar ads can be found here. I can't believe Chiat Day failed to clear the use of these songs with Pink, Mariah Carey, and The Who... or whatever major label actually owns the rights."

The Register

[Eezy Bordone]

Also has a story on this [theregister.co.uk]. The kicker is it all rhymes!

Re:The artists?

[Darken_Everseek]

Quoth the FA:

Eminem responded by ending discussions with Apple, according to the suit.

Cheers.

Re:Would it be cheaper?

[DroopyStonx]

It wouldn't be cheaper because you could sue for the rate that you were asking plus "damages". So what would normally have cost them $10 million will now probably cost them 15-20.

Unless you want to pull a Ray Parker. The studios who made Ghostbusters (name eludes me at the moment) asked Huey Lewis for rights to use his songs in Ghostbusters. When he denied them permission, they took the music to "I want a new Drug" and sped it up. Put lyrics in by Ray Parker and made the Ghostbusters theme.

Of coursse, it went to court and they had to pay out the azz, but they still got what they want.

Re:Eminem

[bad enema]

Eminem, or M&M as you call it, comes from the fact that his real name is Marshall Mathers - hence the M and M.

Slim Shady...well that's just pure egotism.

Not just the label - but the publisher too

[Anonymous Coward]

Apple needed permission from the publisher - not the label who released the album.

In case you don't know - the publisher is whomever owns the copyright to the music and the words. The label owns the sound copyright. Two different things

Since the commercial (I haven't seen it) re-recorded the song the sound copyright holder doesn't need to be involved, but they needed a license from the publisher (a sync license) to broadcast the commercial.

Re:Sampling

[stratjakt]

No. They sample all the time, espescially in hip hop/rap, but they clear it with the copyright holders.

The Verve lost a huge lawsuit for "Bittersweet Symphony", the sample they used was from a Rolling Stones concert, for instance.

Re:How ironic!

[dbesade]

Anyone who creates a work of literature, if it be lyrics, a book, etc, has a copyright, but then if they choose they can become a registered copyright, which is a legal copyright, it holds up in court a lot better than just saying "hey I wrote that you fruity bastard!"

This is how the business works, isn't it?

[Elwood P Dowd]

Dr. Dre hires musicians to play baselines differently so that it will fit the legal requirements and he will not be required to pay royalties to the person he is "sampling".

If he copies a baseline verbatim (or actually samples their record), he pays them a royalty.

This isn't his decision, this is the decision made by the politicians that made the laws so restrictive. Paul's Boutique could never be made today, because the sampling is too extensive and it would be impossible for the record company to clear the record legally.

Advertisers must license every song that they use in their advertisements. Unlike "sampling," advertising has always worked this way, afaik. I see very little wrong with The Rolling Stones charging Billy G so many millions to use "Start Me Up."

So, go white boy go white boy go white boy go. Take those fat cats down. They knew they were supposed to get a license.

Re:Sampling

[the Man in Black]

Not "freely". Publishing rights and royalties are always worked out ahead of time, even for the smallest of samples. Failure to do so results in disastrous lawsuits and LARGE royalties being paid out to the original artist/publisher. This happened when Peter Gunz & Lord Tariq sampled Steely Dan's Black Cow for their Deja Vu (Uptown Baby). Steely Dan was awarded six figures plus sole writing credit and rights to all future publishing, which pretty much meant that Lord Tariq & Peter Gunz made about $5 off the platinum single.

Musicians and Royalty-Free Sampling

[Bluetrust25]

They're supposed to obtain approval from the orignal artist. Often it's easier to simply re-record the same bass line or drum beat themselves to avoid copyright problems like that rapper did with the police "I'll be watching you" bass line a few years back used in the tribute song to the other rapper that was killed in a stupid east vs. west rapper feud. (Vague enough for you?)

Most electronic musicians avoid the hassle by buying huge collections of royalty-free samples. There's a whole industry built up around it. Funny, I'm selling a huge collection of 19 Sample CDs for making electronic music [ebay.com] right now on eBay.

Plugging slashdot rocks.

you correct.

[Anonymous Coward]

the instant you create something its copyrighted.

Law likely on Eminem's side

[saddino]

This is an interesting case. Anyone has the right to "cover" a copyrighted work, as long as the compulsory license is paid to the publisher (usually a per performance, or per mechanical fee).

However, in the case of endorsement, a specific license is indeed required (my wife - IANAL, but she is, ahem -- handles these from time to time). If the kid "singing" the song can be construed as an endorsement (probably), then Eminem deserves compensation.

Also, his likely fee ($10M) is definitely in the ballpark. You'd be amazed how much established artists make for these licenses. In fact, using an original song is usually so prohibitively expensive, that the licensor usually opts for a license to use a "cover" version only (much cheaper, but still a lot of money). That's why when you hear famous songs in commercials, they're often covers. FYI, in these cases, the language in these contracts usually requires a cover not to sound exactly like the original recording.

Re:free....

[ePhil_One]

Radio stations have ALWAYS had to pay to play music on the air. It just that record companies often pay "consultants" to encourage "read: Pay" radio stations to play their songs. They also often sign liberal agreements with stations (Pay us $x a month and you can play anything from our catalog). Dance clubs have to pay as well, as technically does the DJ who charges you to play at your Bat Mitzah. Restaurant chains don't sing the traditional "Happy Birthday" song because they would have to pay royalties to the song writer.

The issue is that these people are using other people's IP to make money. There are situatons where the owner might agree to license the IP for free (or even pay the "player") but its up to the owner to decide that.

Re:It's Fair Use

[LearnToSpell]

It's not fair use. It's a public broadcast, in an advertisement designed to make money. Nice try though.

Re:Would it be cheaper?

[goofballs]

"apple music who?"??! nobody's heard of them? you realize that they're the beatle's record label, owned by paul mccartney and ringo starr, right?

Grey Tuesday

[merlin_jim]

Since the site is slashdotted, I thought I'd share what info I can...

It's basically a freedom of speech civil disobedience thing based on posting DJ Danger Mouse's Grey album for 24 hours on your website (on Feb 24, "Fat Tuesday"), because EMI is (supposedly) wrongly trying to censor this work, as it is a remix of Jay-Z's Black Album and the Beatles' White Album. They claim rights to the White Album. The organizers claim that it is a respectful and positive derivative work and should not be stifled.

Hardly readable google cache here: http://216.239.39.104/search?q=cache:OqlsV9RPt3YJ: www.greytuesday.org/+grey+tuesday&hl=en&ie=UTF -8

As a digital DJ myself, I'm siding with EMI. I don't care if your work is respectful or not. I don't care if its positive or not. If I put hard work into making music, you have no right to profit off that work by remixing that music without seeking permission first.

Re:How ironic!

[li99sh79]

Yep, ironic for a guy whose stage name is a blatant phonetic copy of M&M candies. Kinda like the whole Windows/Lindows thing.

Well, M and M are his initials...

-sam

Re:Dude, Chill

[tolldog]

Covers are completely legal [cdbaby.net], which is what this would be.

You just have to notify the copyright holder and pay less than 10 cents per download (not sure what it is for commercial useage.)

Now, INAL but I have been looking into music copyright recently.

-Tim

Not Eminem's version

[daBass]

In the article, it says that it was a performance of the song done by someone else. This type of use does not need to be cleared, even for advertising. How many ads haven't you seen that have a well known song, but performed by someone else?

Eminem, however, is listed as part composer for this commercial and every time it is played, he will/should be reimbursed for his efforts. But I can tell you that those rates are nothing to write home about.

The only time you need clearance, or a license, to use a recording for a commercial is if you use, well, the actual recording. This could be the case, as the soundtrack for this performance may contain samples from the original, but there is no way to tell from the articles.

If those samples do not exist in the commercial, Mr. Slim is acting kinda Shady in this case...

Re:My understanding...

[hchaos]

The song is 5:20 long. A ten year old kid sang 10 seconds of the song or 3.125% of the song. They used no actual music or clips of the song just a kid saying 3.125% of the words to the beat.

So it's a bit either way IMHO. has no music, tunes, singing or the original recording by eminem. I don't know about the legality of it, but I presume with such a minor amount of 'copying', apple's ad agency thought there was no need to get permission, but eminem obviously disagrees.

Federal copyright law happens to agree with Eminem in this case. Copyright does apply to song lyrics, there is no such thing as "fair use" for commercial purposes, and the percentage of the song used is irrelevant, because 1) it is clearly identifiable as lyrics unique to the song, and 2) is clearly intended by the advertiser to be recognized as the Eminem song.

Re:Musicians and Royalty-Free Sampling

[SirSlud]

dont be silly.

String got writing credits on Puff Daddy's cover of Every Breath You take. (The cover is called "I'll be missing you.") I can't believe how many people think Puff Daddy got away with something there. Shit, Stevie Wonder got writing credits on "Wild Wild West", another unoriginal hiphop cover that most people think was blatantly ripped off.

Not that re-recording a bassline can get you out of copyright litigation, since copyright infringement has nothing to do with the bits, and everything to do with the order and arrangement of notes, regardless of what instrument plays it, or what key you transpose it to.

Re:Dude, Chill

[ceejayoz]

Fair use must be non-commercial use, last I checked.

Re:Sampling

[irn_bru]

Actually the full story can be found here [superswell.com]

Not only did they The Verve lose a lawsuit against The Stones, but also has successful legal challenges from Andrew Loog Oldham [andrewloogoldham.com] who owns the rights to all Pre 1968 Stones songs...

Worse than that, because the courts has ruled the due to the Sample, The Verve did not own the song, the Stones management then licensed the song to be used in adverts for Nike and Vauxhall...

Your ignorance is showing

[Anonymous Coward]

Not to knock electronic music or anything, but most rap is nothing more than bullshit..

rap != electronic music

illiterate rubbish rhythmically spoken over badly looped techno.

rap != techno

Please have the sense to research what you're going to criticize and then use generally-agreed-upon terminology so that others can participate.

Re:Still Waiting on Lawsuits...

[freshman_a]

queen did sue vanilla ice.

van halen did sue tone loc.

the WCW/WWE did have to pay the estate of jimi hendrix for use of hendrix's music.

it took about 5 minutes on Google to confirm those 3. not sure about the rest though. i can't spend all day on google now, can i?

Re:Grey Tuesday

[Catamaran]

If I put hard work into making music, you have no right to profit off that work by remixing that music without seeking permission first.

Copyright was meant to provide an incentive to artists, not an unlimited monopoly to corporations.

"...That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move and have our physical being, incapable of confinement, or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. - THOMAS JEFFERSON "

For more good quotes go to Center for the Public Domain [centerfort...domain.org]

Compulsory licenses and Apple's use.

[mark_wilkins]

OK. So.

As others have pointed out, Apple's ad agency used an entirely new, original recording of a person singing the song in question.

Such use is covered by the compulsory license provisions of 17 USC 115, part of the copyright title of the United States Code:

http://www4.law.cornell.edu/uscode/17/115.html

As long as Apple provided notice to the copyright holder (usually the publishing company that owns the publishing rights to the music and lyrics) and paid the compulsory license fee, they're in the clear. They do NOT need permission for this.

Furthermore, since Eminem's likeness and the sound of his voice were not used at all in the ad, it's highly unlikely that there's any merit at all to the assertion that he is somehow entitled to fees for an endorsement of their product.

Since the licenses described in 17 USC 115 are compulsory and the fees are explicitly spelled out, that chunk of statute probably precludes any further claims Eminem could make unless what they did in the commercial went beyond the scope of the compulsory license. Based on what I saw in those ads it almost certainly did not.

This one's probably dead on summary judgment. I'd be surprised if Apple even tried to settle this one for more than their projected legal costs to get to a ruling on that.

-- Mark

Re:Attention: This is totally legal.

[Anonymous Coward]

From http://www.templetons.com/brad/copymyths.html:

"10 Big Myths about copyright explained"

"The "fair use" exemption to (U.S.) copyright law was created to allow things such as commentary, parody, news reporting, research and education about copyrighted works without the permission of the author."

Apple was not doing any of the above things. They were using the song in an advertisement for their product. Fair use doesn't apply in a commercial context.

Oops, I'm a dumbass

[mark_wilkins]

I was so wrong. Too bad I can't delete my earlier comment:

From the statute:

A person may obtain a compulsory license only if his or her primary purpose in making phonorecords is to distribute them to the public for private use, including by means of a digital phonorecord delivery.

I think the meaning of this section is going to be the core of the dispute.

-- Mark

Re:Sampling

[afidel]

Which is of course more proof that IP law in the U.S. as it is now practiced is antithetical to the founding fathers reason for allowing it. How can it be promoting the arts and sciences when failing to get clearance for a single sample means that all revenue from an entire album is no longer the artists?!?! Sampling does NOT harm the origional artists just as small quotes and attributions in written works do not harm their origional authors. Heck you should be able to create a work made solely from samples so long as you list where the samples are from, that would be in line with how copyright works in the written world.

Apple Music vs. Apple Computers

[shigelojoe]

Interesting history:

Back when Apple Computers was first starting out, Apple Music sued them for copyright infringement; specifically, the use of name "Apple". The judge ruled that since Apple Computers had no involvement with the music industry, or the creation of sound in general, there was no possibility of confusion in the mind of the consumer, and the suit was dropped.

When sound was added to the Mac's capabilities, evidently one of the programmers thought that this would open Apple Computers to another lawsuit from Apple Music and thus taunted them by including in the sound list a sound titled "Sosumi".

So now you know... the rest of the story.

Re:Still Waiting on Lawsuits...

[Reverberant]

They settled out of court [rollingstone.com].

Re:Dude, Chill

[ChaosDiscord]

Fair use must be non-commercial use, last I checked.

Fair use is way more complicated than that. One of the (many) reasons for fair use is for reviews and commentary on other works. Those reviews and commentary are free to be commercial. Thus, you can create and sell, say, a television show where you review movies and show brief clips of the movie to emphasize or clairify points. (Although I understand many reviewers choose to seek permission; angering the studios means you don't get advance screening tickets.)

Of course, if by commercial use you mean "used in an advertisement" that may be the case, but that's not a terribly common usage of commercial use.

Re:My understanding...

[notsoclever]

Did you know that the first couple to be married in this San Francisco torrent has been together since 1953?!

They've been together 51 years, in circumstances which require way more dedication than a heterosexual union.

Apply that to your stereotype. Yes, gay couples tend to break off after a short time period. NEWS FLASH: So do straight couples.

Re:Dude, Chill

[ChaosDiscord]

An excellent site on fair use [stanford.edu].

Re:New Litigious bastard

[inc_x]

> It should be noted that his work was not actually used.

No, it was used. The lyrics were used and the lyrics constitute a work of art under copyright law.

> I am not here to defend Apple but to deride artists with frivolous lawsuits.

Eminem has a rather clear and strong case here, so I think it is anything but frivolous. Plenty of case law that supports his position.

Re:Attention: This is totally legal.

[Keyeser_Soze]

It was a boy.... Apple is trying to associate Lose Yourself with the Ipod/Itunes service which is why they will lose.

It's only OK for Eminem to steal music

[eberry]

It had to already be mentioned, but if not here it is. The Slim Shady LP sampled a song called Pigs Go Home and was sued by the current copyright owner [thesmokinggun.com], a 70 year old grandmother.

New performance, not sample

[solprovider]

Eight Mile Style filed the copyright infringement suit ... At issue is an ad for Apple's iTunes pay-per-download music software, in which a 10-year-old sings Eminem's "Lose Yourself."

I agree. If a 10-year-old is singing the song, then it is a new performance (unless Eminem has a time machine.) To use Eminem's song for a new performance requires "mechanical rights", which are automatically granted for a set fee. Mechanical rights are applied for selling something that includes the copyright (but not perfomances) of an artist. I believe that should apply to advertising that does not include the artist's performance, but IANAL.

Most songs are handled by the The Harry Fox Agency (HFA) [harryfox.com]. Eminem has 50 songs listed at Songfile.com [songfile.com], which is HFA's online license application for low volume use. The list does not include "Lose Yourself". If the song is not handled by HFA, then you must [musicbizacademy.com] contact the publisher directly.

There is a lawsuit, so somebody believes they had the right to tell Apple they could not use lyrics in a commercial. But it is not about a "sample", because Apple did not use a "sample" of Eminem's performance.

OK- What about the Happy Birthday song?

[microcars]

It's OK to sing it in a private setting, but TECHNICALLY, (according to SNOPES [snopes.com]) one must pay for its use in any other setting:

Does this mean that everyone who warbles "Happy Birthday to You" to family members at birthday parties is engaging in copyright infringement if they fail to obtain permission from or pay royalties to the song's publisher? No. Royalties are due, of course, for commercial uses of the song, such as playing or singing it for profit, using it in movies, television programs, and stage shows, or incorporating it into musical products such as watches and greeting cards; as well, royalties are due for public performance, defined by copyright law as performances which occur "at a place open to the public, or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." So, crooning "Happy Birthday to You" to family members and friends at home is fine, but performing a copyrighted work in a public setting such as a restaurant or a sports arena technically requires a license...

also from here [piercegorman.com] this bit about the song and copyright law:

Copyright restrictions do not apply to each time that someone sings Happy Birthday to You to a family member, friend, or co-worker. This type of use is not copyright infringement for failure to obtain the permission from the publisher. Royalties are due only for commercial uses of the song, such as playing or singing it for profit (as did Western Union in its singing telegrams), using it in the movies, television shows, live stage shows, or incorporating the song into musical products, such as singing birthday greeting cards or candles. [Anderson, Bruce, "Beyond Measure," Attache, January 2002]. Royalties are also due and payable in instances of public performances, which are defined by copyright law as performances which occur "at a place open to the public, or at any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered." [U.S.C. 106 of the Copyright Act].

So for those arguing that a "cover" of the song can sung without obtaining any rights, I would have a say that a precedence has been set and it does not appear to be in favor of Apple and Chiat Day.

Re:Sampling

[another_mr_lizard]

It wasnt actually the Stones who sued - it was Andrew Loog Oldham, their old manager.
The sample came from the Andrew Loog Oldham Orchestra version of The Last Time - he also owns a lot of the early stones recordings.

Re:Sweet Jesus

[NecroPuppy]

Actually, he did ask first.

Mathers gave permission for the song, but then wouldn't allow it to be released as either a single, or for a video for it to be produced.

Al mocked this decision during the Poodle Hat tour with one of his 'interviews', by turning it around on Mathers as a free speach issue.

It was extremely funny.

(4th row, opening concert, Poodle Hat tour; aka, the sound check.)

Re:Grey Album Torrent?

[frission]

found it: http://www.seren.net/grey/grey_album/Danger_Mouse_ Grey_Album.torrent

Not exactly

[SonicSpike]

That compulsory license fee is regarding lyrics/notation (copywrighted by the publisher), not the actualy sound recording itself (copyrighted by the record label).

Yes, anyone can record a song as long as they pay the standard $.08 fee per copy to the publisher. This is called a mechanical royalty.

We are talking about the lyrics/notation, not the actual recording of the lyrics/notation.

HOWEVER, to use the lyrics/notation in a broadcast type of setting or to sync it up to film/video requires negtioation as the standard rate does NOT apply in that case.

I know what I am talking about, my degree is in the recording industry:
http://www.MTSU.edu/~record/

the synchronization right was infringed

[oystur]

Mechanical rights apply to the creation and distribution of CDs.

Songwriters also enjoy an audiovisual synchronization right that they can grant to allow the placement of a song in timed relation to a visual image. Without that synch right Apple owes Slim Shady some bling bling.