Eminem has sued Apple for apparently using some of the lyrics to his song Lose Yourself in an ad.
My pipe dream is that this wasn’t a communication problem, and that Apple’s lawyers made a conscious decision to ignore Eminem’s refusal — deciding if he sued, they’d fight under the Fair Use clause.
This of course would be a horrible business decision since it would infuriate the music industry, and ITunes would probably suffer. (No, it definitely would.) So it is likely just a pipe dream.
But the music industry insists that quoting lines from songs, regardless of the amount of quoting, isn’t fair use. They insist on being paid for even the slightest use. Actions that would clearly be covered under the “Fair Use” clause when dealing with written works, BMI, ASCAP, and musicians will sue over when it comes to their properties. And people pay rather than fighting it in courts.
What we need is someone big enough and strong enough to say, no, sorry, you don’t have the legal right to do this. The Fair Use clasue of the Copyright Law applies to you too.
(Note: We are not dealing here with the use of Eminem’s voice, or even the sampling of his music. We have a boy in an ad singing lyrics.)
Here’s section 107 of the copryight law, aka the Fair Use clause It does imply it is not meant for commercial endeavors. So Apple would not be a good candidate for bringing this case. We need another musician using someone’s music/lyrics in their own song (as comment or criticism). We need to go a little further than the parody battles that have already been fought — such as 2 Live Crew’s (I think it was them) parody of Roy Orbison’s Pretty Woman.
As suggested in the comments section, Apple’s best defense would be they got permission from someone other than Eminem who they believe had the authority to grant permission. Or proof of some communication from Eminem that could have been misinterpreted dated after the communication they’re presenting.
Apple’s other defense might be somewhat circuitous. The evidence Eminem is presenting is a letter from Apple lawyers asking a question, paraphrase: “To confirm, you aren’t granting permission.” The article doesn’t mention any evidence being presented by Eminem of a response to that letter.
Maybe Apple’s lawyers are going to try to claim that a lack of response implied consent. But absent any evidence that Apple did or tried to pay Eminem the $300,000 (the agreed upon compensation for the song Slim Shady, which Apple wanted Eminem to grant Losing Yourself for instead)…I don’t know.