Rap Song in iTunes Spot Begets Lawsuit

LOS ANGELES The music publisher for Eminem confirmed that Omnicom’s TBWA\Chiat\Day is included, along with Apple Computer, MTV and Viacom, in a lawsuit over allegations that an Apple iTunes commercial used one of the rapper’s songs without permission. Neither the agency nor Apple would comment on the pending suit.

“We are not looking for extraordinary publicity from the complaint,” said Joel Martin, administrator for 8 Mile Style Music, Ferndale, Mich. “They came to us for permission to use the music after producing the spot. They were denied, but ended up using it two or three months later, after the original batch of commercials had run.” Martin contends the spot ran briefly on Viacom’s MTV but has since been pulled.

A source close to Eminem (Marshall Mathers) said last week that the singer did not request the suit and would probably not gain from it.

“Marshall made it clear that he didn’t want to license the song ‘Lose Yourself’ and dilute the composition in any way,” said Martin. “Certain songs become valuable for these types of commercial uses and you are not eager to do it unless it is the right circumstances and for the right money.”

The complaint, filed in U.S. District Court’s Eastern District of Michigan, Southern Division, contends that Mathers has “never nationally endorsed any commercial products” and would “require a significant amount of money, possibly in excess of $10 million.”

According to the complaint, the Playa del Rey, Calif., agency prepared the commercial and posted it on Apple’s Web site without approval. The music publisher then offered “The Real Slim Shady” for use in a commercial for $300,000, but Martin was called personally by Apple CEO Steven Jobs and told that “Apple was too far into its original campaign to make any changes” and that Jobs “was not satisfied with the actor’s performance on the version of ‘The Real Slim Shady.’ ”

According to Martin, when Jobs threatened to kill the campaign without permission to use ‘Lose Yourself,’ Mathers instructed Martin to pull all permissions. The complaint alleges that the commercial using ‘Lose Yourself’ aired between July and October 2003.

“The spot has been pulled,” said Martin. “It’s a very surprising situation that they would go ahead and infringe, especially since Apple and iTunes should know the value of protecting copyright.”