Facebook Accused of Infringing Eminem Song

     DETROIT (CN) – Facebook used an unauthorized version of Eminem’s “Under The Influence” to advertise the new smartphone app Facebook Home, the rapper’s music publishers claim in court.
     Eight Mile Style and Martin Affiliated filed a copyright infringement complaint against social networking service Facebook and its advertising agency, Wieden + Kennedy, in Federal Court.
     Eight Mile Style reportedly manages rights and licensing for Eminem’s songs.
     The publishers claim that Facebook used music “substantially similar” to the Eminem track “Under The Influence” in an advertisement for Facebook Home.
     Home is a new Android-compatible smartphone app that allows users to post content to Facebook from the home screens of their phones.
     “Under The Influence” is a track on Eminem’s 2000 album “The Marshall Mathers LP” and was performed by Eminem and his rap group, D12. Neither D12 nor Eminem, real name Marshall Mathers, are parties to the lawsuit.
     The publishers say an attorney for the defendants falsely claimed that Eminem’s longtime producer and collaborator (nonparty) Dr. Dre composed “Under The Influence” by lifting elements from Michael Jackson’s “Give It To Me.” The Detroit Free Press identified that attorney as Wieden + Kennedy representative Guy Cohen.
     The publishers say Wieden + Kennedy used “Under The Influence” to “curry favor” with Facebook CEO Mark Zuckerberg, a “longtime fan of Eminem.”
     “This is evidenced by one of the first websites Zuckerberg reportedly created in 1999, on which Zuckerberg refers to himself as ‘Slim Shady,’ which is Eminem’s famously known alter-ego,” the publishers claim.
     They say Facebook unveiled the infringing advertisement called “Airplane” at an April media event where Zuckerberg introduced the Facebook Home application to the world.
     “The music contained in the Airplane advertisement for Facebook Home infringes the worldwide copyright in the Eminem/D12 composition as the music is substantially similar to the Eminem/D12 Composition and any ordinary observer would absolutely recognize the music as being a copy of the Eminem/D12 composition,” the plaintiffs say.
     Eight Mile Style claims that days after the event, Facebook realized it was “facing substantial liability” and altered the music in an on-air version of “Airplane” for its YouTube channel.
     Wieden + Kennedy later admitted there was “‘clearly some similarities’ between the music contained in the live advertisement and the revised music contained in the YouTube version,” according to the complaint.
     In response to a cease-and-desist letter, the publishers claim, an attorney for Wieden + Kennedy sent a reply “brimming with bellicose language and replete with gross factual inaccuracies.”
     “First, counsel falsely and wrongfully alleged that Andre Young, professionally known as Dr. Dre, composed ‘Under the Influence,'” the complaint states. “Yet, a simple Internet search of the Eminem/D12 Composition would have revealed that ‘Under the Influence’ was composed by Marshall Mathers, III, and members of D12, including Denaun Porter, Von Carlisle, Ondre Moore, R. Arthur Johnson, and DeShaun Holton. Dr. Dre likewise did not produce ‘Under the Influence.’ The producers credited with production of the song are Eminem and the Bass Brothers.”
     The lawsuit continues: “Next, after wrongfully disparaging Dr. Dre with inflammatory accusations about his practices as a producer and his alleged ‘long, well-documented history of copyright infringement,’ (which is misguided, gratuitous and irrelevant since Dr. Dre was not involved in the creation of the Eminem/D12 composition), the letter continues with bizarre allegations that Dr. Dre has actually stolen from Michael Jackson because ‘Under The Influence’ is supposedly a rip-off of one of Michael Jackson’s songs. Not one person, however, who heard the Facebook advertisement, and commented about it on the blogosphere, noted any similarity between the Facebook advertisement and any Michael Jackson song. To the contrary, it is clear that the Airplane advertisement copied directly the Eminem/D12 Composition, and ordinary observers have so concluded.” (Parentheses in original.)
     The music publishers say Wieden + Kennedy’s “self-serving narrative” does not shield Facebook from liability.
     A Facebook spokesman declined to comment.
     Since early 2010, Eight Mile Style has been a party to 10 copyright infringement lawsuits, according to the Courthouse News Service database.
     Eight Mile Style sued Apple over its use of Eminem’s “Lose Yourself” for an iPod commercial but settled the case in 2005.
     Audi allegedly used a “Lose Yourself” rip-off for a European promotional spot. Eight Mile Style settled that dispute in 2011, according to the Free Press.
     The plaintiffs seek an injunction, a jury trial, unspecified statutory damages and costs.
     They are represented by Robert Busch with King & Ballow of Nashville.

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