Will the real valid licence please stand up? Eight Mile Style go the extra mile against Spotify

Eminem’s music publisher Eight Mile Style has filed a lawsuit against Spotify for copyright infringement. As Eminem’s music publishers (and therefore as a result of the publishing agreement signed between the two), Eight Mile Style own and control the copyright to the musical compositions written in whole or in part by Eminem (real name Marshall Mathers).

Owning the copyright to music is a valuable asset which can be commercially exploited by way of licensing, as is the case with most forms of intellectual property.

Artists typically get into publishing agreements with music publishers to enable the music publisher to manage and administer and commercially exploit the valuable asset that is the copyright in their songs on their behalf. Most importantly, an important role of the publisher is to develop, protect and enforce the copyright, which involves taking appropriate action against anyone using music without the necessary licence.

And that is exactly what has happened here: Eight Mile Style assert that Spotify did not have the proper required licence to stream, reproduce or distribute 243 of Eminem’s songs. Without the proper required licence, the proper required royalty payments are most likely not being paid.

Usually, streaming platforms are required to seek out the copyright owner of a song and then obtain the required valid licence directly from the copyright owner in order to stream, reproduce and distribute the song.

However, Eight Mile Style noted that Eminem’s well-renowned song ‘Lose Yourself’ (alongside several other songs by Eminem) were placed by Spotify in a category called ‘copyright control’; a category which is reserved for songs for which the copyright owner is not known. Under US law, songs within this category can be distributed under a ‘compulsory licence’ as opposed to a direct valid licence from the copyright owner. With a compulsory licence, Spotify would have given a ‘notice of intent’ to stream Eminem’s music to the US Copyright Office, rather than giving the required notice to Eight Mile Style for permission to stream music which they own.

Eight Mile Style have therefore alleged that Spotify deceptively (and rather lazily) acted as if they had a compulsory licence from the US Copyright Office granting them permission for the reproduction of Eminem’s songs, rather than having engaged in the required effort to match Eight Mile Style as the owners of Eminem’s songs and rightfully obtain the permission from them.

Eight Mile has attacked Spotify for what it has called the “absurd notion” that it couldn’t be identified as the owner of such an iconic song such as ‘Lose Yourself’, particularly given that it was the centrepiece of the semi-autobiographical movie ‘8 Mile’, in which Eminem featured, was number 1 song on the Billboard Hot 100 for 12 weeks from 9^th November 2002, and won an Oscar for best original song in 2003. In essence, ‘Lose Yourself’ could be said to be the most successful single of Eminem’s mainstream career.

Eight Mile Style are seeking damages from Spotify for the billions of what they say are unlicensed streams to the tune of $150,000 for each of 243 songs. This makes a total of $36.4 million.

A new piece of US legislation The Music Modernisation Act 2018 (MMA law) was designed to make the process of finding song owners easier and quicker by way of a public database. However, that database will not be ready for use until 2021.

Given that the lawsuit has just been filed, it is not clear whether this case will go all the way to Court or whether a settlement will be reached. But in and amongst the wider legal arguments, the US constitutional complexities to be wrangled, and whatever the outcome, the key point is that it is definitely much cheaper to obtain the correct licenses and permissions for the use of copyrighted works in the first instance!

Here at Briffa we can assist you with all of your copyright matters. We can also assist with drafting copyright licenses and assignments should you as a copyright owner wish to exploit your right in these ways. For those of you in the music industry – we can assist with the reviewing of publishing agreements. Please feel free to contact us if you wish to discuss your intellectual property rights.

Written by Gloria Aboagye, Solicitor